Habeas Corpus and Due Process

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HABEAS CORPUS AND DUE PROCESS
Brandon L. Garrett
The writ of habeas corpus and the right to due process have long been
linked together, but their relationship has never been more unsettled or impor-
tant. Following the September 11, 2001 attacks, the United States detained
hundreds of suspected terrorists who later brought legal challenges using the
writ. In the first of the landmark Supreme Court cases addressing those de-
tentions, Hamdi v. Rumsfeld, the plurality chiefly relied on the Due Process
Clause to explain what procedures a court must follow. Scholars assumed
due process would govern the area. Yet in Boumediene v. Bush, the Court
did not take the due process path and instead held that the Suspension
Clause extended habeas corpus process to noncitizen detainees at Guanta-
namo Bay. Boumediene correctly grounded the analysis in the Suspension
Clause, not the Due Process Clause. The Court held that the Suspension
Clause demands a traditional habeas process, simply asking whether the de-
tention is legally and factually authorized. This view challenges the set of
standards that judges currently use in executive detention cases and also has
implications for domestic habeas; it could ground innocence claims in the
Suspension Clause. More broadly, this Suspension Clause theory reflects
commonalities in the structure of statutes and case law regulating habeas
corpus across its array of applications to executive detention and postconvic-
tion review. Habeas review now plays a far more central role in the complex
regulation of detention than scholars predicted, because habeas review does
not depend on underlying due process rights. A judge instead focuses on
whether a detention is authorized. As a result, habeas review can inversely
play its most crucial role when prior process is inadequate. Put simply, the
Suspension Clause can ensure that habeas corpus begins where due process
ends.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 R
I. THE DISTINCTION BETWEEN HABEAS CORPUS AND DUE
PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 R
A. The Great Writ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 R
B. Common Law Origins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 R
1. Origins of Habeas Corpus . . . . . . . . . . . . . . . . . . . . . . . . . 60 R
2. Origins of Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 R
Roy L. and Rosamund Woodruff Morgan Professor of Law, University of Virginia

School of Law. I thank for their invaluable comments: Kerry Abrams, Michael Collins,
Marc Falkoff, Paul Halliday, John Harrison, Aziz Huq, Lee Kovarsky, Tom Lee, Dave Mar-
tin, Hiroshi Motomura, Tom Nachbar, Gerald Neuman, Dan Ortiz, George Rutherglen,
Colin Starger, Amanda Tyler, Steve Vladeck, Larry Walker, and participants at a University
of Virginia School of Law faculty workshop. I thank Mark Johnson for excellent research
assistance.
47
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48 CORNELL LAW REVIEW [Vol. 98:47
3. The Suspension Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 R

4. The Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 R
C. A Writ and a Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 R
II. FROM HAMDI TO BOUMEDIENE . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 R
A. Hamdi: Due Process and Habeas Process . . . . . . . . . . . . 74 R
1. The Mathews Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 R
2. Habeas Corpus Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 R
3. A Thicker Due Process? . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 R
B. Boumediene and Due Process . . . . . . . . . . . . . . . . . . . . . . . . 79 R
1. Retelling Habeas History . . . . . . . . . . . . . . . . . . . . . . . . . . 81 R
2. The Suspension Clause Alone? . . . . . . . . . . . . . . . . . . . . . 82 R
3. Influence of Due Process on Habeas . . . . . . . . . . . . . . . . 85 R
C. What is an Adequate Substitute for Habeas? . . . . . . . . 87 R
D. Process and Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 R
III. PROCESS IN THE SHADOW OF BOUMEDIENE . . . . . . . . . . . . . . . . 92 R
A. Burden of Proof and Immigration Habeas
Analogies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 R
B. Postconviction Analogies: Discovery and Fact-
Finding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 R
C. Criminal Procedure Analogies . . . . . . . . . . . . . . . . . . . . . . 103 R
1. Hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 R
2. Self-Incrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 R
3. Voluntariness of Confessions . . . . . . . . . . . . . . . . . . . . . . . 105 R
4. Harmless Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 R
D. Remedies and Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 109 R
IV. THE SUSPENSION CLAUSE AND JUDICIAL REVIEW . . . . . . . . . . . 111 R
A. Habeas Process as an Organizing Principle . . . . . . . . . 111 R
B. Three Hypotheticals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 R
C. Innocence and the Suspension Clause . . . . . . . . . . . . . . 121 R
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 R
INTRODUCTION
[S]tandards of due process have evolved over the centuries. But

the nature and purpose of habeas corpus have remained remarka-
bly constant.
Justice William J. Brennan1
The role of habeas corpus is to determine the legality of executive
detention, not to supply the omitted process necessary to make it
legal.
Justice Antonin G. Scalia2
1 Fay v. Noia, 372 U.S. 391, 402 (1963).

2 Hamdi v. Rumsfeld, 542 U.S. 507, 576 (2004) (Scalia, J., dissenting).
2012] HABEAS CORPUS AND DUE PROCESS 49
The writ of habeas corpus and the right to due process have long
been linked together. The Supreme Court has called [v]indication
of due process the historic office of habeas corpus.3 Following hazy
origins at common law, habeas corpus and due process together
formed a powerful current in the stream of constitutionalism.4 Over
time, judges connected notions of due process to the development of
the writ of habeas corpus,5 the great writ of liberty that allows a
judge to inquire into the legality of a prisoners detention.6 Neverthe-
less, until recently, federal courts have had few occasions7 to define
the relationship between the Suspension Clause of Article I, which
limits Congresss ability to suspend the Privilege of the Writ of
Habeas Corpus,8 and the Due Process Clauses of the Fifth and Four-
teenth Amendments, which state that no person shall be deprived of
life, liberty, or property without due process of law.9 Instead, the
Suspension Clause appeared dormant, its meaning obscure and
elusive.10 The Suspension Clause does not affirmatively define the
power of the court in cases in which this great writ shall be issued,11
as Chief Justice John Marshall put it; rather, the Clause assumes the
existence of the writ and names conditions for suspension. The Su-
preme Court has repeatedly avoided defining the Clauses content.12
In contrast, the Court often meticulously defines the procedures the
Due Process Clause requires.13 Scholars noting the Courts avoidance
of the problem stated that the relationship between the Suspension
3 Fay, 372 U.S. at 402.

4 See DANIEL JOHN MEADOR, HABEAS CORPUS AND MAGNA CARTA: DUALISM OF POWER
AND LIBERTY 5 (A.E. Dick Howard ed., 1966).
5 See infra note 84 and accompanying text. R
6 The U.S. Supreme Court has used the phrase great writ of liberty in several cases.
See Burns v. Wilson, 346 U.S. 137, 148 (1953) (Frankfurter, J., opinion); Darr v. Burford,
339 U.S. 200, 225 (1950) (Frankfurter, J., dissenting); Prigg v. Pennsylvania, 41 U.S. (16
Pet.) 539, 619 (1842).
7 See infra Parts I.C, II.AB.
8 U.S. CONST. art. I, 9, cl. 2.
9 U.S. CONST. amend. V; id. amend. XIV, 1.
10 David L. Shapiro, Habeas Corpus, Suspension, and Detention: Another View, 82 NOTRE
DAME L. REV. 59, 59 (2006); see also George Rutherglen, Structural Uncertainty over Habeas
Corpus & the Jurisdiction of Military Tribunals, 5 GREEN BAG (n.s.) 397, 398 (2002) (After
more than two hundred years, we still do not know the scope and dimensions of the pro-
tection that [habeas corpus] affords against executive detention.).
11 Ex parte Watkins, 28 U.S. (3 Pet.) 193, 201 (1830).
12 See, e.g., INS v. St. Cyr, 533 U.S. 289, 301 n.13 (2001) (The fact that this Court
would be required to answer the difficult question of what the Suspension Clause protects
is in and of itself a reason to avoid answering the constitutional questions that would be
raised by concluding that review was barred entirely.); infra notes 6872 and accompany- R
ing text.
13 See infra Part I.B.4.
Clause and the Due Process Clause remained completely

unsettled.14
The relationship between the Suspension Clause and the Due
Process Clause has sweeping implications for the detention of sus-
pected terrorists and military engagements in multiple countries after
September 11, 2001. In Boumediene v. Bush, the Supreme Court for
the first time clearly gave the Suspension Clause independent force as
an affirmative source of judicial power to adjudicate habeas petitions
and as a source of meaningful process to prisoners in custody.15 As a
consequence of this decision, Congress now cannot enact jurisdiction-
stripping legislation to deny executive detainees access to judicial re-
view of the type that it has twice tried and failed to do in the past
decade.16 A noncitizen detained as a national security threat may now
have procedural rights to contest the detention.17 Even as the Execu-
tive has crafted nuanced positions on power and procedure for de-
taining persons for national security reasons, and even as Congress
has adopted new detention-authorizing legislation,18 the judiciary
continues to play a central role, though sometimes unwillingly and
deferentially, in detention review.19 Apart from these specific devel-
opments, I argue that the reinvigorated Suspension Clause jurispru-
dence will continue to have ripple effects across all areas regulated by
habeas corpus.
What process must the government use to ensure that it detains
the correct people? The traditional assumption was that the Due Pro-
cess Clause provided the answers. Judges and scholars described a
14 Martin H. Redish & Colleen McNamara, Habeas Corpus, Due Process and the Suspen-
sion Clause: A Study in the Foundations of American Constitutionalism, 96 VA. L. REV. 1361, 1364
(2010); see also Joshua Alexander Geltzer, Of Suspension, Due Process, and Guantanamo: The
Reach of the Fifth Amendment After Boumediene and the Relationship Between Habeas Corpus and
Due Process, 14 U. PA. J. CONST. L. 719, 720 (2012) (describing the relationship between
habeas corpus rights and due process protections as a surprisingly under-explored
topic). I do not address the novel argument that the Due Process Clauses supersede the
Suspension Clause, such that a suspension of habeas corpus must be unconstitutional
unless it satisfies the demands of the Due Process Clause. Redish & McNamara, supra, at
1396.
15 See infra Part II.
16 See infra notes 23540 and accompanying text. R
17 See Boumediene v. Bush, 553 U.S. 723, 73233 (2008) (holding that noncitizen
petitioners designated as enemy combatants do have the habeas corpus privilege and
that the governments existing procedures were not an adequate and effective substitute
for habeas corpus).
18 See Press Release, President Barack Obama, Statement by the President on H.R.
1540 (Dec. 31, 2011), available at http://www.whitehouse.gov/the-press-office/2011/12/
31/statement-president-hr-1540 (citing the Administrations effective, sustainable frame-
work for the detention, interrogation and trial of suspected terrorists); infra note 333 and R
accompanying text (discussing the National Defense Authorization Act for Fiscal Year
2012).
19 See infra Part III for analysis of the D.C. Circuit Court of Appeals case law in
particular.
functional relationship in which due process supplied the rights while

habeas provided the procedural means to vindicate them. Justice
Antonin Scalia expressed this view in its starkest form in his INS v. St.
Cyr dissent, arguing that the Suspension Clause does not guarantee
any content to (or even the existence of) the writ of habeas corpus.20
Judges and scholars have long assumed that due process offers more
protections than habeas corpus, or that the substance of habeas is co-
extensive with the Due Process Clause.21 Others have suggested that
the Suspension Clause has a structural role, entwined with other in-
dividual rights guarantees.22 The U.S. government, in the wake of the
September 11, 2001 attacks, adopted the view that noncitizens cap-
tured and detained abroad had no due process rights and thus no
habeas remedy, and the D.C. Circuit agreed.23
In two cases that reshaped habeas jurisprudence, Hamdi v. Rum-
sfeld, decided in 2004,24 and Boumediene, decided in 2008,25 the Court
20 533 U.S. 289, 337 (2001) (Scalia, J., dissenting); id. ([T]he text [of the Suspension
Clause] does not confer a right to habeas relief, but merely sets forth when the Privilege of
the Writ may be suspended . . . . (first and second alterations in original) (quoting RICH-
ARD H. FALLON, JR. ET AL., HART AND WECHSLERS THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 1369 (4th ed. 1996)) (internal quotation marks omitted)).
21 See id.; WILLIAM F. DUKER, The Writ of Habeas Corpus, the Constitution, and State Habeas
for Federal Prisoners, in A CONSTITUTIONAL HISTORY OF HABEAS CORPUS 126, 126 (1980) (ar-
guing the Suspension Clause was designed to protect availability of state habeas for federal
prisoners); Redish & McNamara, supra note 14, at 1365 (arguing that the Due Process R
Clause preempts the Suspension Clause); Shapiro, supra note 10, at 6365 (viewing the
Suspension Clause as an affirmative guarantee of habeas availability, while also viewing the
habeas corpus remedy [as] essential to the full realization of other rights, including due
process); Amanda L. Tyler, Is Suspension a Political Question?, 59 STAN. L. REV. 333, 383
(2006) [hereinafter Tyler, Is Suspension a Political Question?] ([A]t their respective cores,
the right to due process and the Great Writ are coextensive.); Amanda L. Tyler, The Forgot-
ten Core Meaning of the Suspension Clause, 125 HARV. L. REV. 901, 921, 924 (2012) [hereinaf-
ter Tyler, Forgotten Core Meaning] (noting that [b]y the time of the Founding, the privilege
had evolved to encompass not just a generic right to due process, but also a particular
demand, a specific right not to be jailed outside formal criminal process).
22 See, e.g., Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Sub-
stantive Rights, and the War on Terror, 120 HARV. L. REV. 2029, 207071 (2007) (emphasizing
the structural role of the Suspension Clause within the Constitution); Tyler, Is Suspension
a Political Question?, supra note 21, at 342, 38486 (describing the relationship between the R
Great Writ and core due process values). For a related view that the Clauses should be
read together, see David Cole, Jurisdiction and Liberty: Habeas Corpus and Due Process as
Limits on Congresss Control of Federal Jurisdiction, 86 GEO. L.J. 2481, 2484 (1998).
23 See, e.g., Boumediene v. Bush, 476 F.3d 981, 99193 (D.C. Cir. 2007) (holding that
the Constitution does not confer rights on aliens without property or presence within the
United States and characterizing the Suspension Clause as just another source of constitu-
tional rights to which such aliens have no claim); Response to Petitions for Writ of Habeas
Corpus and Motion to Dismiss or for Judgment as a Matter of Law and Memorandum in
Support at 2627, Hicks v. Bush, No. 02-CV-0299 (D.D.C. Oct. 4, 2004) ([N]on-resident
aliens in U.S. custody overseas do not have constitutional rights that can be enforced in a
proceeding seeking a writ of habeas corpus. (citing Johnson v. Eisentrager, 339 U.S. 763,
778 (1950))).
24 542 U.S. 507 (2004).
25 553 U.S. 723 (2008).
connected the Suspension Clause and the Due Process Clause in a

new way. Hamdi seemed to indicate that the Due Process Clause ap-
proach had triumphed. The Hamdi plurality applied the cost-benefit
due process test from Mathews v. Eldridge26 to outline the procedural
rights of citizens who challenge their detention.27 Following Hamdi,
the precise scope of what due process required seemed the looming
question for the future of executive detention.28 In response, the
government hastily implemented administrative screening procedures
for detainees, ostensibly to comply with the bare minimum that due
process appeared to require.29
In Boumediene, the Court chose a different constitutional path.
The Court did not discuss whether Guantanamo detainees had due
process rights, but instead held that the Suspension Clause indepen-
dently supplies process to ensure review of executive detention.30 The
Court put to rest the notion that the Suspension Clause is an empty
vessel and regulates only the conditions for congressional suspension
of the writ. Instead, the Court held that the Suspension Clause itself
extended the fundamental procedural protections of habeas
corpus.31 The Courts view complements recent scholarship examin-
ing the common law origins of habeas corpus.32 However, while an-
26 424 U.S. 319 (1976).

27 See Hamdi, 542 U.S. at 52829 (plurality opinion).
28 Fallon, Jr. & Meltzer, supra note 22, at 2093. R
30 See Boumediene, 553 U.S. at 785 (Even if we were to assume that the [new proce-
dures] satisfy due process standards, it would not end our inquiry.). Scholars have given
this landmark holding much-deserved attention. See, e.g., Daniel J. Meltzer, Habeas Corpus,
Suspension, and Guantanamo: The Boumediene Decision, 2008 SUP. CT. REV. 1, 1 ([T]he
Supreme Court, . . . for the first time, clearly held . . . that the Constitutions Suspension
Clause . . . affirmatively guarantees access to the courts to seek the writ of habeas corpus
(or an adequate substitute) in order to test the legality of executive detention.); Gerald L.
Neuman, The Habeas Corpus Suspension Clause After Boumediene v. Bush, 110 COLUM. L.
REV. 537, 538 (2010) (The Supreme Court had never before found a violation of the Sus-
pension Clause, and the holding of Boumediene gives its reasoning a precedential signifi-
cance that earlier discussions lack.); Stephen I. Vladeck, Boumedienes Quiet Theory: Access
to Courts and the Separation of Powers, 84 NOTRE DAME L. REV. 2107, 210708 (2009) (Ron-
ald Dworkin may not have been exaggerating when he referred to . . . Boumediene v. Bush as
one of the most important Supreme Court decisions in recent years. (footnote omitted)
(quoting Ronald Dworkin, Why It Was a Great Victory, N.Y. REV. BOOKS, Aug. 14, 2008, at 18,
18)).
31 Boumediene, 553 U.S. at 798.
32 See, e.g., Paul D. Halliday & G. Edward White, The Suspension Clause: English Text,
Imperial Contexts, and American Implications, 94 VA. L. REV. 575, 583, 58688 (2008) (describ-
ing how the Suspension Clause carried the writ of habeas corpus out of English practice
and into American law with little additional jurisprudential baggage and finding that in
Anglo-American jurisprudence, the Great Writ would run where officials of the king, or
his equivalent, were exercising custody, regardless of location, with judges ready to inves-
tigate the factual and legal ground of imprisonment orders premised on allegations that a
person was an enemy alien, a danger to the state, or both). But see Stephen I. Vladeck, The
New Habeas Revisionism, 124 HARV. L. REV. 941, 96768 (2011) (reviewing PAUL D. HALLI-
swering the Suspension Clause question, the ruling created another

puzzle. The Court held that a prisoner should have a meaningful
opportunity to demonstrate unlawful confinement, but it did not
specify what process the Suspension Clause ensures, nor to what de-
gree due process concerns influence the analysis.33 Lower court rul-
ings elaborating on the process for reviewing detainee petitions have
displayed confusion as to which sources to rely on.34 This Article tries
to untangle this important knot.
One view of Boumediene would treat the Courts decision as a
break from the past, grounded in political or separation-of-powers
concerns, but with little authority supporting its interpretation of the
Suspension Clause. Scholars have largely focused on when and how a
government can suspend habeas.35 This may be due to the enigmatic
text of the Suspension Clause, which speaks of a [p]rivilege that
shall not be suspended.36 Because of this language, even scholarship
analyzing substantive aspects of the Courts habeas rulings tends to
focus on when and whether Congress may authorize detention (or on
why the Court tries to avoid substance and tends to dwell on proce-
dure).37 As noted, scholars often assume due process and habeas
corpus rights necessarily accompany each other.38 Yet the Boumediene
DAY, HABEAS CORPUS: FROM ENGLAND TO EMPIRE (2010)) (criticizing the Boumediene court
for treating the citizenship and status of the detainee and the nature of the detention sites
as relevant to the reach of the Suspension Clause when Hallidays research establishes that
the jurisdiction of Kings Bench to issue writs of habeas corpus at the time of the Founding
was effectively indifferent to the status or location of the detainee).
33 Boumediene, 553 U.S. at 729; see infra Part II.B.3.
34 See infra Part III.
35 This argument has implications for a related question, extensively debated,
whether a suspension of habeas closes access to due process remedies (and more broadly,
whether a formal suspension can authorize otherwise unconstitutional detention). The
problem has rarely arisen, since habeas has rarely been suspended, and I do not directly
address that question here. See Trevor W. Morrison, Suspension and the Extrajudicial Consti-
tution, 107 COLUM. L. REV. 1533, 156062 (2007) (arguing suspension of habeas removes
merely one remedy for violation of underlying rights); Shapiro, supra note 10, at 8386
(arguing detention authorized by a valid suspension is lawful); Amanda L. Tyler, Suspension
as an Emergency Power, 118 YALE L.J. 600, 60405 (2009) (rejecting the narrow view . . . that
a suspension extinguishes the judicial power to order a prisoners discharge but that ordi-
narily illegal arrests remain unlawful and unconstitutional (footnote omitted)).
36 U.S. CONST. art. I, 9, cl. 2.
37 See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the
War on Terrorism, 118 HARV. L. REV 2047, 2122 (2005); Jenny S. Martinez, Process and Sub-
stance in the War on Terror, 108 COLUM. L. REV. 1013, 1016 (2008) (exploring how war
on terror litigation in U.S. courts has been fixated on process); Shapiro, supra note 10, at
6061.
38 See supra notes 2023 and accompanying text. I do not address here important R
questions of whether due process should run to Guantanamo Bay or other detention sites
abroad. See, e.g., Geltzer, supra note 14, at 71921; Richard Murphy & Afsheen John Rad- R
san, Due Process and Targeted Killing of Terrorists, 31 CARDOZO L. REV. 405, 41011 (2009)
(The logic of Boumedienes five-justice majority opinion is that the Due Process Clause
binds the executive worldwide . . . .); Gerald L. Neuman, The Extraterritorial Constitution
Court reaffirmed that habeas rights may do work that due process
might not.39
In this Article, I argue that Boumediene can and should provide a
theory of the nature and structure of habeas corpus.40 While the re-
sult in Boumediene may not have been inevitable, it is in fact well sup-
ported. The Supreme Court has repeatedly emphasized that
[h]abeas is at its core a remedy for unlawful executive detention.41
Behind such statements lies a longstanding and consistent treatment
of habeas process as independent of due process. Boumediene rests
heavily on rulings stretching back decades, particularly in executive
detention cases, which themselves flow from the common law habeas
practice.42 These cases show how habeas process is independent from
due process and has great force when due process protections are
weakest.
To ground this understanding of the differences between due
process and habeas, in Part I, I question a possibly overstated histori-
cal connection between habeas corpus and due process, tracing them
both to Magna Carta, in a celebratory account of the progress of indi-
vidual liberty. Due process and habeas corpus share common law ori-
gins and core concerns with arbitrary deprivations of liberty,43 but
habeas draws on different sources. I contrast habeas process,
grounded in the same process used at common law, with the concept
After Boumediene v. Bush, 82 S. CAL. L. REV. 259, 286 (2009) (The characterization of
Guantanamo as effectively U.S. territory for constitutional purposes probably means that
the Due Process Clause and the Eighth Amendment apply there . . . .). By contrast, the
D.C. Circuit concluded that although Boumediene held that Suspension Clause rights run to
Guantanamo Bay, due process rights do not. See Rasul v. Myers, 563 F.3d 527, 529 (D.C.
Cir. 2009) ([T]he Court in Boumediene disclaimed any intention to disturb existing law
governing the extraterritorial reach of any constitutional provisions, other than the Sus-
pension Clause.)
39 See supra notes 3032 and accompanying text. R
40 This subject falls within what Jenny Martinez calls process as substance. Martinez,
supra note 37, at 1041. Gerald Neumans essay, exploring this problem, draws attention to R
the Courts Suspension Clause and Due Process methodology, describing how it invites
future debate and has profound implications. Neuman, supra note 30, at 578. For an R
excellent pre-Boumediene piece sharing a focus on habeas grounded in judicial power, see
Jared A. Goldstein, Habeas Without Rights, 2007 WIS. L. REV. 1165 (arguing that individual
rights are not necessary for habeas, which is rather a source of judicial power).
41 Munaf v. Geren, 553 U.S. 674, 693 (2008); see also INS v. St. Cyr, 533 U.S. 289, 301
(2001) (At its historical core, the writ of habeas corpus has served as a means of reviewing
the legality of Executive detention, and it is in that context that its protections have been
strongest. (footnote omitted)).
42 See infra Part II.B. I second the view of Gerald Neuman that [t]he account of the
Suspension Clause in Boumediene grows incrementally out of established practice, and
makes no revolutionary break. Neuman, supra note 30, at 565. R
43 See Tyler, Is Suspension a Political Question?, supra note 21, at 383 (noting the senti- R
ments of William Blackstone and Sir Edward Coke that due process and habeas corpus are
linked by their concern for personal liberty); infra notes 114, 166, 247 and accompanying R
text.
of due process, which contains a sprawling modern procedural and

substantive jurisprudence drawing from diverse areas (e.g., substantive
constitutional law, criminal procedure, civil procedure, civil rights law,
cost-benefit analysis, standards for incorporating Bill of Rights provi-
sions, and fundamental rights jurisprudence).44 Real perils arise from
analogizing heterogeneous due process standards to habeas process;
there is no neat overlap. This disjunction is particularly highlighted
by the fact that habeas corpus offers a prisoner process in two ways:
First, judges provide habeas process when reviewing whether a deten-
tion is authorized, which includes examining whether the detention
has adequate factual and legal support.45 Second, in doing so, the
judge may examine whether earlier proceedings comported with due
process.46 The second function overlaps with due process, but not the
first, broader function.
Indeed, scholars have not adequately appreciated how habeas
corpus can offer far more than due process. In the executive deten-
tion context, if there has been no prior judicial process, habeas pro-
cessa federal judge asking whether the detention is authorized,
often focusing on difficult factual questionsmay be particularly cen-
tral. In decades-old immigration rulings, the Court held that for cer-
tain noncitizens with negligible due process rights, habeas corpus
permits an inquiry into the legal and factual authorization for the de-
tention.47 That setting has long made clear how a judge can provide
habeas process where a due process claim would not permit doing so.
In contrast, in contexts involving prior judicial process, such as a crim-
inal conviction, habeas corpus may offer much less than due
process.48
This aspect of habeas corpus explains why it, and not due pro-
cess, would come to play the crucial role in judicial review of national
security detention. In Part II, I develop a theory for how, in the wake
of the September 11, 2001 attacks and subsequent military action, the
Hamdi plurality relied chiefly on due process but indicated that
habeas process also served a role.49 I also examine how the Court in
Boumediene, more carefully than ever before, determined that habeas
provides protection distinct from due process.50 The Court rejected
the view that the Due Process Clause dominates the Suspension
Clause. To fill in the outlines of habeas process, the Boumediene Court
44 See infra Part I.B.

45 See infra Part I.A.
46 Id.
47 See infra note 171 and accompanying text; infra Part III.A. R
48 See, e.g., Heck v. Humphrey, 512 U.S. 477, 48690 (1994).
49 See infra Part II.A.
50 See infra Part II.B.
viewed the Suspension Clause as compatible with due process, not de-
pendent on or coextensive with it.51
In Part III, I develop implications of that relationship between
habeas corpus and due process. The Boumediene Court directed lower
courts to elaborate habeas procedures to examine whether the deten-
tion of Guantanamo detainees was authorized. In response, judges
crafted rulesmultifariously modeled on civil, criminal, and postcon-
viction lawby cherry picking from a raft of due process standards,
sometimes from irrelevant contexts, including jurisprudence drawn
from the postconviction context in which there already had been a
criminal trial.
Discomfort with the institution of habeas corpus has led judges to
adopt vague and unsettled procedures. For example, the D.C. Circuit
reasons that review of enemy combatant detention is not a mere ex-
tension[ ] of an existing doctrine but a whole new branch of the
tree.52 Yet the sparse but powerful habeas process is really the trunk
of the tree. Judges should draw habeas process directly from the core
of traditional habeas corpus process,53 which remains largely un-
changed from common law practice and the earliest federal statutes.
While judges must develop the details of how habeas functions in de-
tention challenges, they should draw that process from habeas juris-
prudence designed to provide a judge with power to scrutinize the
factual and legal authorization for a detention, rather than, for exam-
ple, sources from postconviction law.54 Boumediene demands such a
focus.
In Part IV, I explore the broader potential significance of this
view of the Suspension Clause. Habeas corpus has developed along
different paths, with different statutes and case law regulating post-
conviction and executive detainee petitions. The Suspension Clause
provides a unified structure. Chief Justice John Roberts, dissenting in
Boumediene, noted that habeas is traditionally more limited in some
contexts than in others.55 The core habeas process explains how
context matters: in each area, habeas takes on a greater role where
due process is constrained. Judges have the strongest Suspension
Clause obligation to review legal and factual questions where there
was no prior adequate judicial review of detention. This has implica-
tions for disparate strands of habeas corpus. For postconviction

52 Al-Bihani v. Obama, 590 F.3d 866, 877 (D.C. Cir. 2010).
53 Boumediene v. Bush, 553 U.S. 723, 778 (2008).
54 See generally Lee Kovarsky, A Constitutional Theory of Habeas Power (Univ. of Md. Legal
Studies, Research Paper No. 2012-27, 2012), available at http://ssrn.com/abstract=2061471
(theorizing that the Suspension Clause supplies an Article III habeas power to federal
judges absent a suspension of the writ).
55 Boumediene, 553 U.S. at 814 (Roberts, C.J., dissenting).
habeas, this reading of the Clause provides new constitutional support

for a claim of actual innocence, which the Court has recognized only
hypothetically. Similarly, in immigration law, this view of habeas has
implications for important unsettled questions regarding judicial re-
view following the REAL ID Act of 2005.56
Congress and the Executive have largely accommodated, in the
wake of Boumediene, a system in which judicial review plays a central
role in detention cases, even if judges remain deferential both to con-
gressional authorization for detention and executive procedures for
screening and release of detainees.57 The Suspension Clause may fa-
cilitate this equilibrium better than a due process approach, which
would focus more on procedure and less on substance. A judge ask-
ing whether the Due Process Clause was violated focuses on the mini-
mal adequacy of general procedures, which may not necessarily
require a judicial process. A judge asking whether the Suspension
Clause was violated asks a different question: whether the process pre-
serves an adequate and effective role for federal judges to indepen-
dently review authorization of each individual detainee. The specific
question for the judge is whether a person is in fact detained lawfully,
which is a fundamental question of substance. Despite connections
between habeas corpus and due process, the habeas judges preoccu-
pation with authorization instead of procedure suggests important
reasons for the concepts to remain separate. Habeas corpus and due
process can share an inverse relationship,58 meaning that the Suspen-
sion Clause can continue to do its work standing alone.
I
THE DISTINCTION BETWEEN HABEAS CORPUS AND
DUE PROCESS
A. The Great Writ
The writ of habeas corpus has a much-celebrated and storied his-
tory that brings with it immediate incantation of the Great Writ.59
The Supreme Court has lauded the indispensable function of the
Great Writ60 that indisputably holds an honored position in our ju-
risprudence.61 The traditional purpose of habeas corpus is elemen-
56 See infra Part IV.A. Congress enacted the REAL ID Act as Division II of a 2005
supplemental defense spending bill. See Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109-13,
101106, 119 Stat. 231, 30211 (codified at 8 U.S.C. 1778 (2006)).
57 See infra Part III.
58 See infra Part IV.A.
59 Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.
CHI. L. REV. 142, 142 (1970).
60 Brown v. Allen, 344 U.S. 443, 452 (1953).
61 Engle v. Isaac, 456 U.S. 107, 126 (1982).
tal but powerful: to allow a judge to review the legality of a prisoners

detention.62
Judges have variously described the writ of habeas corpus as a
right,63 a remedy,64 a procedural right,65 or a mechanism.66
Those characterizations are each partially correct, but taken alone
they may be misleading. Habeas corpus is a writ. It is not a modern
cause of action requiring an individual to assert a legal right; it arises
from a common law writ. As the Court noted in Boumediene, the Sus-
pension Clause refers not to any positive right or remedy but to [t]he
Privilege of the Writ of Habeas Corpus,67 which shall not be sus-
pended.68 Despite this, scholars and courts have long debated
whether the Suspension Clause assures any minimum scope or con-
tent to the writ and whether lower federal courts, which Congress
need not create, must entertain the writ to provide meaningful reme-
dies.69 In focusing on these issues, scholars seem to be imposing a
modern questionwhat is the scope of the habeas righton a
premodern text with a common law answerhabeas is not a right, but
judges may entertain a prayer for the writ and require the jailer to
justify the legality of the detention.
The Court gingerly avoided addressing the independent force of
the writ before deciding Boumediene. For example, in Ex parte Bollman,
the Courts first ruling on the subject, Chief Justice Marshall famously
noted that federal jurisdiction must be given by written law, but that
the first Congress might have felt some obligation, acting under the
immediate influence of [the] injunction of the Suspension Clause,
62 Boumediene v. Bush, 553 U.S. 723, 745 (2008) (The [Suspension] Clause protects
the rights of the detained by affirming the duty and authority of the Judiciary to call the
jailer to account.).
63 Boumediene v. Bush, 476 F.3d 981, 993 (D.C. Cir. 2007) (The fact that the Sus-
pension Clause abuts the prohibitions on bills of attainder and ex post facto laws, provi-
sions well-accepted to protect individual liberty, further supports viewing the habeas
privilege as a core individual right. (quoting Tyler, Is Suspension a Political Question?, supra
note 21, at 374 & n.227)). R
64 Fay v. Noia, 372 U.S. 391, 400 (1963) (describing the Great Writ as affording . . . a
swift and imperative remedy in all cases of illegal restraint or confinement (quoting Secy
of State for Home Affairs v. OBrien, [1923] A.C. 603 (H.L.) 609 (appeal taken from
Eng.))).
65 Boumediene, 553 U.S. at 802 (Roberts, C.J., dissenting) (Habeas is most fundamen-
tally a procedural right, a mechanism for contesting the legality of executive detention.).
66 Id.
67 U.S. CONST. art. I., 9, cl. 2.
68 Boumediene, 553 U.S. at 743 (The word privilege was used, perhaps, to avoid men-
tioning some rights to the exclusion of others.).
69 See, e.g., RICHARD H. FALLON, JR. ET AL., HART AND WECHSLERS THE FEDERAL COURTS
AND THE FEDERAL SYSTEM 1162 (6th ed. 2009) (The constitutional text appears to presup-
pose the existence of habeas corpus jurisdiction, but it does not affirmatively guarantee a
right to habeas corpus . . . .); Francis Paschal, The Constitution and Habeas Corpus, 1970
DUKE L.J. 605, 607 (viewing the Suspension Clause as a direction . . . to make the habeas
privilege routinely available).
to provide life and activity to the writ.70 The Court more recently
stated in Felker v. Turpin that it assumed for purposes of decision
here, that the Suspension Clause of the Constitution refers to the writ
as it exists today, rather than as it existed in 1789.71 The Court took a
different stance in INS v. St. Cyr, stating that the Suspension Clause
might at the absolute minimum protect the writ as it existed in
1789.72
While the Court had avoided stating whether the Suspension
Clause affirmatively guarantees some habeas remedy, it had clearly es-
tablished that habeas serves a core purpose as a means of reviewing
the legality of Executive detention.73 Effectuating this purpose may
require courts to examine the legal and factual justifications for hold-
ing a detainee. Once a petition is filed, the government has the bur-
den of showing that a detention is authorized. This burden reflects a
principle central to the concept of due process: deprivation of an indi-
viduals liberty must be in accordance with the law. What judges con-
ducting habeas review do, though, which is different from conducting
a due process analysis, is to inquire whether the detention is lawful or
factually supported.
A judge examining a habeas petition provides process in two
ways. First, a judge reviewing a habeas petition may examine law and
facts concerning the prior process used to place a person in custody.74
Postconviction petitions filed by prisoners seeking review of their state
criminal convictions, in which judges must consider whether the state
violated the defendants constitutional rights, dominate the federal
habeas docket. The second-largest category is postconviction motions
by federal prisoners challenging federal convictions, although they
are filed chiefly under a statutory analogue to habeas.75
Habeas corpus has a second purpose, originally its primary pur-
pose, in which a judge independently examines the justification for
the detention.76 A detainee filing a writ need not allege a violation of
a right, just that custody is unauthorized, thereby placing the burden
on the Executive to show cause for the detention and requiring the
70 8 U.S. (4 Cranch) 75, 9495 (1807).

71 518 U.S. 651, 664 (1996).
72 533 U.S. 289, 301 (2001) (quoting Felker, 518 U.S. at 664); see also FALLON, JR. ET AL.,
supra note 69, at 116263 (discussing the Courts INS v. St. Cyr decision). R
73 St. Cyr, 533 U.S. at 301.
74 See FALLON, JR. ET AL., supra note 69, at 1154 (The primary contemporary use of R
federal habeas corpus is as a postconviction remedy for prisoners claiming that an error of
federal lawalmost always of federal constitutional lawinfected the judicial proceedings
that resulted in their detention.).
75 Id.; see 28 U.S.C. 2255 (2006).
76 See FALLON, JR. ET AL., supra note 69, at 1154 ([P]ostconviction relief was not the R
original office of habeas corpus, which focused instead on whether extra-judicial deten-
tionmost often by the executivewas authorized by law.).
judge to review the legality of and authorization for the detention.77

Of course, judges have less to review where prior judges already devel-
oped a record and examined the detention. As a result, independent
habeas process has become less commonly used.
This traditional habeas process remains crucial, however, where
the Executive detains a person without prior judicial process. In gen-
eral, habeas protections have been strongest when reviewing the
legality of Executive detention.78 Immigration law, which I examine
in Part III,79 also contains decisions, dating back many decades, that
emphasize how habeas plays a role even without an underlying due
process right.80 This original function of habeas process, with its com-
mon law origins,81 has become particularly important in national se-
curity detentions post-9/11.
B. Common Law Origins

Celebratory accounts of habeas corpus and due process trace
back to King John pronouncing Magna Carta to the barons assembled
at Runnymede, assuring them that the King was not above the law and
that they could not be imprisoned or punished except according to
the law of the land.82 As Justice David Souter wrote in Hamdi, [W]e
are heirs to a tradition given voice 800 years ago by Magna Carta,
which, on the barons insistence, confined executive power by the law
of the land.83 The Supreme Court, in Fay v. Noia, hailed the union
of the right to due process drawn from Magna Charta and the remedy
of habeas corpus accomplished in the [seventeenth] century.84 Many
overstate the historical connection between habeas corpus and due
process to Magna Carta. Nevertheless, habeas and due process were,
and are, conceptually and practically connected. What is the relation-
ship? An examination of the origins of both concepts shed light on
that question.
1. Origins of Habeas Corpus

Habeas corpus practice remains, in some respects, closely linked
to its common law origins. The Supreme Court describes habeas
77 See id. at 1153 ([A]n individual whose liberty is restrained may file a petition seek-
ing issuance of the writ, and thereby require a custodian . . . to justify the restraint as
lawful.).
78 St. Cyr, 533 U.S. at 301.
79 See infra Part III.A.
81 Engle v. Isaac, 456 U.S. 107, 126 (1982) (noting that habeas has roots deep into
English common law).
83 Hamdi v. Rumsfeld, 542 U.S. 507, 552 (2004) (Souter, J., concurring).
84 372 U.S. 391, 402 (1963).
corpus as a writ antecedent to statute, . . . throwing its root deep into

the genius of our common law.85 As Paul Halliday powerfully shows
in a book that reshaped our understanding of habeas corpus, the
common law writ was not based on a modern concept of individual
rights, but rather a royal prerogative and the Kings grace and mercy,
grounded in a judges command to a jailer in order to inspect
whether a person was properly detained.86
Traditional historians traced habeas corpus to Magna Carta, in
which feudal barons in England secured a charter from King John
pronouncing that no person could be imprisoned or punished ex-
cepting by the legal judgment of his peers, or by the laws of the
land.87 William Church cited to Magna Carta as form[ing] a basis
for hundreds of years on which prisoners unlawfully confined could
ground their demand for liberty.88 However, the notion that habeas
corpus originated from Magna Carta was a myth and the two were
unrelated in origin, as Daniel Meador developed in a classic treat-
ment.89 Paul Halliday and G. Edward White write that in an idealized
version of habeas corpus, the history of the writ becomes a history of
the ever-greater manifestation of ideals of fairness, due process, and
humanitarianism associated with the Anglo-American tradition of
justice under law.90 Magna Carta did not name a specific process to
prevent imprisonment contrary to the law of the land, and law of
the land referred to a host of broad concepts.91
Habeas corpus originated before Magna Carta from a shifting set
of mundane writs that courts employed to have the body, or to order
the moving of prisoners, bringing them before the court and holding
sheriffs and other custodians accountable.92 The modern form of the
writ emerged centuries later. Hallidays examination of records of the
Kings Bench revealed how judges gradually transformed habeas
corpus into a means to call to account, on behalf of the King, jailers
who detained subjects in a manner repugnant to common law and
common weal.93 In the seventeenth century, leading up to the En-
85 Rasul v. Bush, 542 U.S. 466, 473 (2004) (alteration in original) (quoting Williams v.
Kaiser, 323 U.S. 471, 484 n.2 (1945) (Frankfurter, J., dissenting)).
86 HALLIDAY, supra note 32, at 7. R
87 See WILLIAM S. CHURCH, A TREATISE ON THE WRIT OF HABEAS CORPUS 2 (Gaunt,
Inc. 1997) (1893) (quoting RICHARD THOMSON, AN HISTORICAL ESSAY ON THE MAGNA
CHARTA OF KING JOHN 83 (London, John Major & Robert Jennings 1829)).
88 Id. 2, 3(a) (recognizing the use of other ancient writs before Magna Carta).
89 MEADOR, supra note 4, at 5. R
90 Halliday & White, supra note 32, at 581. R
91 HALLIDAY, supra note 32, at 16, 13738. R
92 Id. at 17, 4041; see also MEADOR, supra note 4, at 89 (describing early English R
orders used to bring a person before the court).
93 HALLIDAY, supra note 32, at 22, 27. R
glish Civil War and Restoration, justices used habeas as a powerful

check on other courts, officials, and even Parliament.94
This common law process involved legal and factual review of de-
tention.95 A case began with the filing of a prayer for the writ, which,
if granted, permitted the judge to send a writ asking the jailer to ex-
plain the cause of the commitment and to produce the prisoner in
court. The jailer complied by sending a return and producing the
prisoner.96 In the return, the jailer might raise a defense that com-
mon law, statute, or custom authorized the detention. The judge
might then order the release of the prisoner. A release might not be
based on a violation of a right, but rather because the jailer could not
show the detention was authorized by law or sufficient facts.97
During the writs seventeenth-century heyday, justices began to
not only inquire into the cause of the detention, but also the initial
arrest.98 As Halliday has shown, judges would even make these inquir-
ies in cases in which another court ordered the detention, including
courts of record such as the Privy Council and Star Chamber.99 The
inquiries increased factual demands made by the writ and required
justices to read deeply into the returns.100 Justices did not adopt a
particular standard of proof when assessing facts, but followed the
facts of cases rather than rules; review could depend on elements of
the statute providing the basis for detention.101
Historians traditionally repeated [t]he apparent rule against
controverting the return,102 suggesting that the factual inquiry was
limited to the jailers statement in support of detention.103 Halliday
94 See id. at 3031 (During the seventeenth and eighteenth centuries, supervising
wrongs created by statutes formed most of the writs business. In the 1640s, . . . [s]ome
parliamentary leaders took it upon themselves to reform the nations conscience as they
reformed its governance, . . . [and] many used imprisonment orders to convince the un-
convinced. Kings Bench met them head on . . . .).
95 See Marc D. Falkoff, Back to Basics: Habeas Corpus Procedures and Long-Term Executive
Detention, 86 DENV. U. L. REV. 961, 974 (2009) (describing how judges would deploy a host
of procedural tools for inquiring into the factual justification for the prisoners deten-
tion); Jonathan L. Hafetz, The Untold Story of Noncriminal Habeas Corpus and the 1996 Immi-
gration Acts, 107 YALE L.J. 2509, 253536 (1998) ([J]udges were not entirely precluded
from reviewing facts on habeas corpus. . . . The main constraint on judicial review of the
facts in a return to habeas corpus was the principle that juries must answer to questions of
fact and judges to questions of law.).
96 See FALLON, JR. ET AL., supra note 69, at 1153. R
97 See HALLIDAY, supra note 32, at 10406. R
98 Id. at 106.
99 Id.
100 Id. at 53.
101 Id. at 10405.
102 Id. at 109.
103 Cf. Fallon, Jr. & Meltzer, supra note 22, at 2102 ([E]arly practice was not consis- R
tent: courts occasionally permitted factual inquiries when no other opportunity for judicial
review existed.); Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of
has powerfully shown, by examining Kings Bench records, that con-

trary to the letter of this oft-repeated rule,104 judges generated myr-
iad ways to elicit evidence, including through written and in-person
testimony.105 Thus, judges routinely considered extrinsic evidence
such as in-court testimony, third party affidavits, documents, and ex-
pert opinions to scrutinize the factual and legal basis for deten-
tion.106 During this evolution of the writ, Parliament enacted the
English Habeas Corpus Act of 1679, which, though celebrated, may in
fact have done little to supplement common law habeas practice.107
Habeas corpus did far more than allow judges to supervise com-
pliance with the then-limited notion of due process, which applied
chiefly to felon pretrial process. Instead, habeas corpus permitted
broad supervision of the legality of and factual support for a deten-
tion. As I describe, in many respects this traditional habeas process
remains the practice today in federal executive detentions, based on
both current federal habeas statutes and the process federal courts
have developed.
2. Origins of Due Process
In England, the term due process was not in use until long after
Magna Carta, which pronounced that no person could be imprisoned
or punished excepting by the legal judgment of his peers, or by the
laws of the land.108 The term law of the land, was broad and re-
ferred to statutes, custom, common law, and prerogative writs.109 The
narrower term due process was first used centuries later in a 1354
statute, stating that no Man of what Estate or Condition that he be,
shall be . . . taken, nor imprisoned . . . nor put to Death, without being
Aliens, 98 COLUM. L. REV. 961, 986 (1998) (noting that the general statement that the
petitioner could not controvert the facts stated in the return papered over exceptions).
104 The supposed rule had origins in dicta by Lord Coke, which in fact related, as
Halliday describes, to an unrelated rule regarding suits for trespass or false imprisonment
filed by former prisoners seeking damages after their release. HALLIDAY, supra note 32, at R
10810. The rule operated to separate civil actions seeking compensation after release
from those seeking release from unauthorized detention in the first instance. Judges did
not, despite repeating the apparent rule, require a separate action to challenge facts in a
return. Id. at 109.
105 Id. at 10911.
106 Brief of Legal Historians as Amici Curiae in Support of Petitioners at 29,
Boumediene v. Bush, 553 U.S. 723 (2008) (No. 06-1195).
107 31 Car. 2, c. 2 (Eng.); see HALLIDAY, supra note 32, at 34 (The . . . Habeas Corpus R
Act of 1679 had a . . . mixed effect. Many of the practices it prescribed had long been used
in Kings Bench. (footnote omitted)); MEADOR, supra note 4, at 25 ([C]elebrated though R
it is, the Act dealt with no profound questions and introduced no new principles.).
108 See CHURCH, supra note 87, 2 (quoting THOMSON, supra note 87, at 83). R
109 HALLIDAY, supra note 32, at 145. R
brought in Answer by due Process of the Law.110 Later commenta-

tors, beginning with Sir Edward Coke, focused on the words due pro-
cess as fair and judicial process.111 Habeas corpus was one method
by which justices could review custody and prior process.112 Coke,
who famously connected due process to habeas corpus, wrote: [I]f a
man be taken, or committed to prison contra legem terrae, against the
law of the land, what remedy hath the party grieved? . . . He may have
an habeas corpus . . . .113 Commentators following Coke celebrated
habeas corpus and the due process concept as a common law source
for individual rights and liberty.114 Coke described how both due pro-
cess and habeas corpus enabled judges to ensure against arbitrary and
unlawful imprisonment. Habeas provided, however, a broader power
to supervise jailers. Habeas corpus did not merely assure compliance
with pretrial due process, but empowered the judge to scrutinize the
factual and legal authorization of the detention.115
3. The Suspension Clause

The Suspension Clause stands alone as the only common law writ
mentioned in the Constitution. Article I, Section 9 provides: The
110 Liberty of Subject, 1354, 28 Edw. 3, c. 3 (Eng.), reprinted in 1 THE STATUTES OF THE
REALM 345 (1810); see Ryan C. Williams, The One and Only Substantive Due Process Clause, 120
YALE L.J. 408, 428 (2010).
111 Keith Jurow, Untimely Thoughts: A Reconsideration of the Origins of Due Process of Law,
19 AM. J. LEGAL HIST. 265, 266 (1975) (noting the tendency of scholars to focus on the
words due process of law at the expense of the remainder of the 1354 statute). Sir Ed-
ward Coke famously equated due proces of law with law of the land, as the true sense
and exposition of the phrase. EDWARDO COKE, THE SECOND PART OF THE INSTITUTES OF
THE LAWS OF ENGLAND 50 (London, W. Clarke & Sons 1809) (1642). Cokes conflation of
law of the land with due process has been much criticized. See, e.g., MEADOR, supra note 4, R
at 22 ([T]he final welding together of [habeas corpus and due process] was probably
effected by Cokes monumental Institutes on the Law of England, though they have been
heavily criticized as to quality of scholarship.); Halliday & White, supra note 32, at 640 R
(pointing out law of the land also referred in significant part to property law, literally law
concerned with land, and more generally with franchises over subjects); Jurow, supra, at
271 (It would have been impossible to subsume all that was considered to be the law of
the land in a single statute.). Coke may have simply been describing judicial process, not
broader questions of individual rights we now associate with due process. See Jurow,
supra, at 272, 277. After all, the word process itself meant writs, including those sum-
moning parties to appear in court. Id. at 272.
112 Coke turned from calling law of the land as due proces [sic] of the common law
to habeas, noting that orders for arrest must be based on just cause of suspicion to be
determined by the justices . . . upon a habeas corpus. COKE, supra note 111, at 50, 52. R
113 Id. at 54.
114 As William Blackstone wrote, Of great importance to the public is the preservation
of this personal liberty . . . . 1 WILLIAM BLACKSTONE, COMMENTARIES *131. Blackstone also
explained that habeas dealt with the personal liberty of the subject. Id. Elsewhere, Black-
stone explained that habeas did so by permitting the court upon an habeas corpus to
examine the validity of a confinement and according to the circumstances of the case may
discharge, admit to bail, or remand the prisoner. 3 WILLIAM BLACKSTONE, COMMENTARIES
*133.
Privilege of the Writ of Habeas Corpus shall not be suspended, unless

when in Cases of Rebellion or Invasion the public Safety may require
it.116 The Clause refers to preserving an existing writ, and it was not
discussed extensively at the Constitutional Convention.117 Halliday
and White explain that the Suspension Clause carried the writ of
habeas corpus out of English practice and into American law with lit-
tle additional jurisprudential baggage.118
In the United States, as in England, the common law writ contin-
ued to operate as before at the state level, but statutes regulated fed-
eral habeas practice. In Ex parte Bollman, the Supreme Court declared
that the power to issue writs of habeas corpus must be given by writ-
ten law, but noted that the first Congress, feeling the obligation to
give life and activity to this great constitutional privilege,119 en-
acted the Judiciary Act of 1789, which empowered all federal judges to
grant the writ.120 The Act provided that state prisoners could pursue
writ-of-error review of state supreme court decisions in the U.S. Su-
preme Court but could not obtain habeas review of cause of commit-
ment in federal courts.121 The Ex parte Bollman Court noted that state
courts are the creatures of a distinct government and therefore state
prisoners lacked statutory means to pursue habeas corpus in federal
courts.122
In contrast, the Act provided for factual and legal review of deten-
tion of federal prisoners. For example, in 1807, following the decision
in Ex parte Bollman, the Court held five days of hearings to fully ex-
amine[ ] the evidence before granting the writ.123 Jared Goldstein
116 U.S. CONST. art. I, 9, cl. 2.

117 Delegates at the Philadelphia Convention disagreed about what circumstances
should permit a suspension of the writ, whether suspension should be limited to a specific
amount of time, or whether suspension should be permitted at all. See DUKER, supra note
21, at 12831 ([T]he absence of the affirmative clause was insignificant. . . . Every state R
. . . secured the writ. The chief concern . . . was over the power to suspend. (footnotes
omitted)); 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 438 (Max Farrand ed.,
1911).
118 Halliday & White, supra note 32, at 583. R
119 8 U.S. (4 Cranch) 75, 95 (1807).
120 Judiciary Act of 1789, ch. 20, 14, 1 Stat. 73, 8182; Bollman, 8 U.S. (4 Cranch) at
8384, 101.
121 14, 1 Stat. at 8182 (limiting habeas review to prisoners held under the authority
of the United States); 25, 1 Stat. 8587 (providing appellate writ-of-error review in the
U.S. Supreme Court of final judgments and decrees of state high courts where, inter alia, a
state statute is challenged as repugnant to the constitution, treaties or laws of the United
States); 1 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCE-
DURE 2.4[d][i] (6th ed. 2011).
122 8 U.S. (4 Cranch) at 97.
123 Id. at 125, 136. Chief Justice Marshall did the same, sitting in a circuit case involv-
ing an enemy alien detainee. See Gerald L. Neuman & Charles F. Hobson, John Marshall
and the Enemy Alien: A Case Missing from the Canon, 9 GREEN BAG (n.s.) 39, 4243 (2005).
State judges conducted similar factual review of detentions. See Halliday & White, supra
reviewed federal habeas decisions following the Act through 1867,

finding that a wide variety of petitions were framed as challenges to
the custodians detention authority, not as violations of individual
rights, including fact-based challenges.124
The detention versus postconviction distinctionbroad factual
and legal review of federal detention but more limited review of state
and federal criminal convictionsdivides habeas corpus jurispru-
dence to this day, although courts have dramatically expanded federal
habeas corpus for both state and federal convicts. The current federal
statute governing the writ of habeas corpus generally,
28 U.S.C. 22412248, retains language from the First Judiciary Act
and provides that a petitioner in federal custody need not lay out a
legal claim, but shall allege the facts concerning the applicants com-
mitment or detention, the name of the person who has custody over
him and by virtue of what claim or authority, if known.125 Under 28
U.S.C. 2243, a judge may issue the writ, order a return, and then
determine the facts to evaluate the true cause of the detention
specified in the return.126 Discovery is available during habeas pro-
ceedings as well as evidentiary hearings, both of which remain largely
unchanged since common law habeas.127
Twentieth-century federal prisoner petition rulings follow the
same process. Immigration habeas decisions in particular demon-
strate this point, because habeas corpus can play a distinctive role
where noncitizens may lack due process rights to any additional immi-
gration procedure. For example, in Ludecke v. Watkins, the Court up-
held discretionary deportation authority under the Alien Enemy Act
of 1798 without additional procedures, but noted that judicial review
remained available to examine the construction and validity of the
statute and whether the person restrained is in fact an alien
enemy.128
Habeas corpus has other, more varied applications, and in some
respects the practice has dramatically changedchiefly outside the
executive detention context. Most significantly, federal habeas stat-
utes have changed with respect to state conviction review. In this con-
note 32, at 70912 (describing and interpreting a Pennsylvania Supreme Court case review- R
ing custody of enemy aliens detained in War of 1812).
124 Goldstein, supra note 40, at 1195. R
125 28 U.S.C. 2242 (2006).
126 Id. 2243. Those statutory procedures have been modified only slightly since the
First Judiciary Act.
127 RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS 6(a)
(2010) (permitting discovery for good cause).
128 335 U.S. 160, 171 & n.17 (1948). To be sure, such habeas rulings did not adopt any
particular standard of proof. See supra note 101 and accompanying text (noting that seven- R
teenth century English courts also avoided adopting a uniform standard of proof); infra
Part III.A (discussing the post-Boumediene question of standard of proof).
text judges and scholars have debated whether habeas corpus

necessarily requires any particular level of judicial review.129 Much of
the language describing habeas as a vehicle for remedying violations
of constitutional rights refers to the context of postconviction review.
Unlike federal detainees, federal convicts seeking postconviction re-
view must pursue relief under a separate statute, requiring assertion of
a right to be released under the constitution or federal law and impos-
ing procedural restrictions on such litigation.130 Similarly, state pris-
oners generally must claim that they are in custody in violation of
the constitution or federal law.131 In state prisoner petitions, judges
must rule on separate federal claims.132 Federal review of state convic-
tions is deferential; judges grant hearings in limited circumstances.133
Federal judges defer to legal rulings by state judges,134 including
based on the stringent requirements of the Antiterrorism and Effec-
tive Death Penalty Act (AEDPA).135 After all, unlike executive detain-
ees, federal and state convicts received prior judicial processa trial,
an appeal, and perhaps state habeas. When judges apply exceptions
129 See Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,
76 HARV. L. REV. 441, 50911 (1963) (Why is it . . . that we go so far to allow relitigation of
constitutional questions . . . and yet do not allow any relitigation of the fundamental ques-
tion of the factual guilt or innocence of the accused?). Those debates relate to postcon-
viction habeas, not review of federal detention in which there has been no judgment
receiving finality. A related debate about scope of early twentieth century postconviction
habeas opinions concerns the relationship between habeas and due process. The Court
described early decisions denying habeas as follows: Absent an alleged jurisdictional de-
fect, habeas corpus would not lie for a [state] prisoner . . . if he had been given an ade-
quate opportunity to obtain full and fair consideration of his federal claim in the state
courts. Wright v. West, 505 U.S. 277, 285 (1992) (alterations in original) (quoting Fay v.
Noia, 372 U.S. 391, 45960 (1963) (Harlan, J., dissenting)). That view has been criticized
as conflating the scope of habeas corpus with that of the Due Process Clause. Thus, Justice
OConnor explained, [W]hen the Court stated that a state prisoner who had been af-
forded a full and fair hearing could not obtain a writ of habeas corpus, the Court was
propounding a rule of constitutional law, not a threshold requirement of habeas corpus.
Id. at 298 (OConnor, J., concurring); Ann Woolhandler, Demodeling Habeas, 45 STAN. L.
REV. 575, 597601 (1993) (describing more complex history in which habeas review was
more limited than scope of available constitutional rights, but courts did not conduct
purely jurisdictional review).
130 28 U.S.C. 2255 (2006).
131 Id. 2241.
132 For statutory requirements referring to claims, see, e.g., 28 U.S.C. 2244(d)(1)(D)
(timely presentation of claims based on new evidence); id. 2254(d) (standard of review
for any claim that was adjudicated on the merits in State court); see also Rose v. Lundy,
455 U.S. 509, 522 (1982) (requiring total exhaustion of each federal claim).
133 See 28 U.S.C. 2254(d)(2), (e).
134 See Teague v. Lane, 489 U.S. 288, 310 (1989) (holding that new constitutional
rules of criminal procedure will not be applicable to petitioners with cases pending post-
conviction review at the time a new rule is announced).
135 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-
132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 18, 22, 28 and 42
U.S.C.); see Felker v. Turpin, 518 U.S. 651, 664 (1996) (holding that AEDPA restrictions on
successive habeas petitions do not amount to an unconstitutional suspension of the writ).
to those restrictions, they typically do so because important new evi-

dence surfaces that no judge has yet examined.136
Executive detention challenges are different. In immigration
habeas, across a wide range of contexts in which noncitizens seek to
challenge decisions to detain or remove them from the United States,
Congress has enacted statutes that preserve de novo review of ques-
tions of law.137 However, Congress has provided for deferential review
of questions of fact where those questions are committed to adminis-
trative discretion or where the case involves a noncitizen with a prior
criminal conviction.138 Congress has provided for broader fact review
for asylum cases139 and de novo fact review where a persons citizen-
ship is at issue.140 The Supreme Court has also insisted on careful
judicial review of indefinite or lengthy detention pending removal.141
As I develop in Part IV, these complex distinctions in immigration law
remain in many respects highly imperfect products of legislative com-
promises. However, in part due to both the Supreme Courts inter-
ventions and judicial and legislative concern with avoiding Suspension
Clause problems, habeas corpus plays a comparatively greater role
precisely where the detention lacks prior judicial process or extensive
due process protections.
4. The Due Process Clause

The Due Process Clause of the Fifth Amendment, mirrored in
the Fourteenth Amendment, states, No person shall be . . . deprived
of life, liberty, or property, without due process of law . . . .142 The
Clause imposes procedural limitations on a States power to take
away protected entitlements.143 Justice Scalia has called the Fifth
Amendment an affirmation of Magna Charta according to Coke,144
and early decisions, like the Courts 1856 decision in Murrays Lessee v.
Hoboken Land and Improvement Co., invoked Magna Carta to describe
process due by looking to settled usages and modes of proceeding at
common law.145 In 1884, in Hurtado v. California, the Court approved

138 See 8 U.S.C. 1252(a)(2)(C), (b)(4)(B) (2006); infra Part IV.A.
139 See, e.g., Xi An He v. Holder, 467 F. Appx 558, 559 (9th Cir. 2012) (We review for
substantial evidence the agencys factual findings . . . .); Ndrecaj v. Holder, 445 F. Appx
428, 430 (2d Cir. 2011) (We review the factual findings of the [Board of Immigration
Appeals] and [Immigration Judge] for substantial evidence. (quoting Islam v. Gonzales,
469 F.3d 53, 55 (2d Cir. 2006))).
140 See 8 U.S.C. 1252(b)(5)(B).
141 See Zadvydas v. Davis, 533 U.S. 678, 699702 (2001).
142 U.S. CONST. amend. V; id. amend. XIV, 1.
143 Dist. Attorneys Office v. Osborne, 557 U.S. 52, 67 (2009).
144 Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 29, 30 (1991) (Scalia, J., concurring).
145 Murrays Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272,
27677 (1856).
of the argument that due process is the equivalent of the law of the
land in Magna Carta.146 Into the twentieth century, petitioners often
filed common law actions, such as trespass, that did not assert due
process rights.147 However, in response, officials could raise a defense
that a statute authorized their acts.148 A court might find the statute
unconstitutional and the acts not immunized, citing the Due Process
Clause. As in traditional habeas litigation, the constitutional issue
arose through anticipation of a defense.
As common law pleading forms eroded, habeas and civil litiga-
tion drifted apart. While habeas practice remained largely the same
in the federal executive detention context, in civil cases courts began
to require the civil rights petitioner to name a constitutional or statu-
tory source for relief.149 This reflected a slow-to-emerge and more
positivist view of rights.150 The Court now emphasizes that the Due
Process Clause requires a court to ask if a particular right is funda-
mental to our scheme of ordered liberty and system of justice.151 The
focus is on the essential principle . . . that a deprivation of life, lib-
erty, or property be preceded by notice and opportunity for hearing
appropriate to the nature of the case.152 Additionally, the Court
adapted hearing and notice concepts into standards that apply to the
full spectrum of state action.
The result is not one but many due process tests regulating dispa-
rate areas where government action touches on life, liberty and prop-
erty interests, including administrative procedure, criminal
investigations and procedure, civil procedure, jurisdiction, and judi-
cial remedies.153 In areas of civil procedure, most notably personal
jurisdiction but also notice requirements, the Court has cited to reali-
ties of modern society, as well as costs, and has broken with traditional
forms of process.154 In other areas, including substantive due process,
146 110 U.S. 516, 521 (1884).

147 Michael G. Collins, Economic Rights, Implied Constitutional Actions, and the Scope of
Section 1983, 77 GEO. L.J. 1493, 151033 (1989).
148 See id.
149 See Woolhandler, supra note 129, at 62325 (describing the gradual replacement R
of common law pleading with pleading that identified a positive source of law).
150 See In re Winship, 397 U.S. 358, 381 (1970) (Black, J., dissenting) (arguing against a
natural law notion of due process, guided by conceptions of fundamental fairness);
Twining v. New Jersey, 211 U.S. 78, 10001 (1908) (rejecting the idea that common law
procedures are fastened upon the American jurisprudence like a straight-jacket).
151 McDonald v. City of Chicago, 130 S. Ct. 3020, 3034 (2010) (citing Duncan v. Louisi-
ana, 391 U.S. 145, 149 (1968)).
152 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)).
153 Id.
154 Compare Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citing modern
notions of process justifying jurisdiction based on certain minimum contacts rather than
requiring physical presence), with Pennoyer v. Neff, 95 U.S. 714, 722 (1878) ([I]t is . . . an
the Court has relied on newly formed consensus.155 In a range of

areas affected by activities of administrative agencies, typically involv-
ing new property interests in government benefits, the Court applied
the Mathews v. Eldridge three-part test, weighing the private interest
affected, the government interest in not providing added safeguards,
and the risk of error absent the procedures.156
Due process jurisprudence retains some of the character of its
common law origins. The Court has emphasized that the most ele-
mental of liberty interests protected by the Due Process Clause is the
interest in being free from physical detention by ones own govern-
ment.157 Similarly, [f]reedom from bodily restraint has always been
at the core of the liberty protected by the Due Process Clause.158 In
areas closely impacting personal liberty, the Court rejects application
of the Mathews test, noting that fundamental fairness has been the
standard used [i]n the field of criminal law, in part because Bill of
Rights provisions govern criminal procedure directly.159 The Court
has, however, applied Mathews in a few contexts relating to depriva-
tions of liberty, including procedures for pretrial detention160 and in-
voluntary civil commitment.161 In Ake v. Oklahoma, the Court invoked
the Mathews test regarding trial access to experts necessary for an ef-
fective defense, but it also cited concerns of fundamental fairness.162
On the whole, due process regulation of criminal procedure has be-
come far more substantial and detailed than anything found at com-
mon law, covering the entire criminal process from investigations and
trials to appeals and postconviction.163
elementary principle, that the laws of one State have no operation outside of its territory
. . . .).
155 See, e.g., Lawrence v. Texas, 539 U.S. 558, 577 (2003) (noting that at the time of the
Courts opinion the right to same-sex intimacy was accepted as an integral part of human
freedom in many other countries and only thirteen states had antisodomy statutes on the
books); Roe v. Wade, 410 U.S. 113, 13940 (1973) (In the past several years, however, a
trend toward liberalization of abortion statutes has resulted in adoption, by about one-
third of the States, of less stringent laws . . . .).
156 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
157 Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) (plurality opinion) (citing Foucha v.
Louisiana, 504 U.S. 71, 80 (1992)).
158 Foucha, 504 U.S. at 80 (citing Youngberg v. Romeo, 457 U.S. 307, 316 (1982)).
159 Medina v. California, 505 U.S. 437, 443 (1992).
160 See United States v. Salerno, 481 U.S. 739, 746, 75051 (1987).
161 See Heller v. Doe, 509 U.S. 312, 33031 (1993); Zinermon v. Burch, 494 U.S. 113,
12728 (1990); Addington v. Texas, 441 U.S. 418, 425 (1979).
162 470 U.S. 68, 7682 (1985).
163 See Jerold H. Israel, Free-Standing Due Process and Criminal Procedures: The Supreme
Courts Search for Interpretive Guidelines, 45 ST. LOUIS U. L.J. 303, 31012 (2001) (describing
the law of the land as understood by Coke as requiring that the monarchy, as well as the
courts, to adhere to legal regularity, basing their decisions upon the common law, custom,
or statute, and not personal whim).
The sheer breadth of modern due process can distract from areas
in which habeas is broader than due process. The Supreme Court has
emphasized only in narrowly defined substantive due process deci-
sions that some deprivations of liberty may be barred regardless of
the fairness of the procedures used to implement them,164 although
overlap is greater, as I discuss in Part IV, in decisions regarding limita-
tions on indefinite civil detention. The focus of a judge using habeas
process on the legal and factual authorization for a detention, apart
from adequacy of procedure, is quite different from that of a judge
relying on modern due process jurisprudence. Due process tests pro-
ceed differently by balancing cost, tradition, dignitary interests, liberty
interests, federalism, and policy concerns. Indeed, due process doc-
trine has developed a strikingly managerial aspect, promoting
schemes and incentives adequate to keep government, overall and on
average, tolerably within the bounds of law.165 In general terms this
description of due process has something in common with habeas
corpus, but the complex contours of evolving modern aspects of due
process jurisprudence, with its various tests adapted to different con-
texts, share little in common with the core, persistent purpose of
habeas corpus: reviewing the basis for detention.
C. A Writ and a Right

In 1963 in Fay v. Noia, Justice William Brennan wrote: Although
in form the Great Writ is simply a mode of procedure, its history is
inextricably intertwined with the growth of fundamental rights of per-
sonal liberty, adding, [v]indication of due process is precisely its his-
toric office.166 In broad strokes, that passage captures how due
process and habeas law have long dealt with matters of personal lib-
erty. While majestic, the passage is imprecise. Both due process and
habeas corpus are concerned with persons in custody, but in very dif-
ferent ways.167 Depending on the context, habeas corpus or due pro-
cess may have different reach.
Not all habeas petitions are grounded in a theory based on a con-
stitutional or federal right. As described, federal prisonersbut not
state prisonersmay seek habeas review if in custody under or by
164 Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (noting also that the
Court has been reluctant to expand the concept of substantive due process); Daniels v.
Williams, 474 U.S. 327, 331 (1986).
165 Richard H. Fallon, Jr., Some Confusions About Due Process, Judicial Review, and Constitu-
tional Remedies, 93 COLUM. L. REV. 309, 311 (1993).
166 372 U.S. 391, 40102 (1963).
167 See 28 U.S.C. 2241(c) (2006) (requiring generally that the writ shall not extend
unless the applicant is in custody); Russell v. City of Pierre, 530 F.2d 791, 792 (8th Cir.
1976) (per curiam), cert. denied, 429 U.S. 855 (1976) (The writ of habeas corpus is availa-
ble only to one who is in custody. (citing 28 U.S.C. 2241(c))).
color of the authority of the United States.168 But, as the Court held
in INS v. St. Cyr, habeas also permits review of statutory entitle-
ments.169 Why is that? Legal questions may arise in habeas in ways
they could not in a due process challenge. A judge may grant habeas
if the statute authorizing the detention is legally invalid. This situa-
tion arises when the statute is unconstitutional, conflicts with other
law, or when it is valid but does not authorize the type of detention at
issue. Factually, the individual may not be of the type who may be
detained under the applicable statute. In contrast, due process juris-
prudence, aside from substantive due process rulings, focuses on the
general adequacy of process used when deciding to detain a person,
not on the substantive authorization for the individual detention.
While scholarship has focused on the effect of a suspension or a
statute stripping federal courts of habeas jurisdiction, some suggest
that lack of a due process right cuts off access to habeas corpus.170
Habeas process may be provided, however, even in cases without a due
process violation. As noted, the Court directly addressed this scenario
in immigration rulings involving noncitizens at the border who have
limited due process rights. The Court has repeated that habeas
corpus nevertheless permits an inquiry into the detentions authoriza-
tion.171 In that setting, as in others, habeas corpus may provide reme-
dies where a due process claim would not.
Habeas corpus may prove narrower than due process in other
contexts, particularly for state convicts. Convicts cannot raise some
due process claims challenging their state trial convictions in a habeas
168 28 U.S.C. 2241(c)(1).

169 See INS v. St. Cyr, 533 U.S. 289, 302 (2001) ([T]he issuance of the
writ . . . encompassed detentions based on . . . the erroneous application or interpretation
of statutes. It was used to command the discharge of seamen who had a statutory exemp-
tion from impressment into the British Navy, to emancipate slaves, and to obtain the free-
dom of apprentices and asylum inmates. (footnotes omitted)); see also Gerald L. Neuman,
Jurisdiction and the Rule of Law After the 1996 Immigration Act, 113 HARV. L. REV. 1963, 1991
(2000) (discussing a circuit split over whether habeas review encompasses statutorily de-
rived discretionary procedures). Procedural due process also embraces discretionary enti-
tlements, as in leading cases such as Mathews v. Eldridge, a case about disability benefits.
424 U.S. 319, 332 (1976) (noting, however, that the Secretary had conceded that the statu-
tory benefit created a property interest).
170 See supra note 23 and accompanying text. R
171 See, e.g., Heikkila v. Barber, 345 U.S. 229, 23435 (1953) (upholding habeas corpus
availability, although the statute at issue barred judicial review of a final deportation or-
der); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (examining the
statutory and constitutional authorization for alien exclusion despite the fact that an alien
who seeks admission to this country may not do so under any claim of right); Ludecke v.
Watkins, 335 U.S. 160, 171 & n.17 (1948) (upholding deportation without a hearing under
the Alien Enemy Act and rejecting the notion that some emanation of the Bill of Rights
would render this invalid, but also stating that judicial review remained as to whether the
person restrained is in fact an alien enemy); United States v. Jung Ah Lung, 124 U.S. 621,
62632 (1888) (holding that the Chinese Exclusion Act of 1882 did not affect jurisdiction
of federal courts to hear habeas petitions). I explore immigration habeas in Part III.A.
petition, especially where some other vehicle is more appropriate.172

Since states are not constitutionally obligated to provide postconvic-
tion procedures,173 when a State chooses to offer help to those seek-
ing relief from convictions, due process does not dictate[ ] the exact
form such assistance must assume.174 On the other hand, due pro-
cess does help to protect rights to adequate and effective access to
courts at trial, appeal, and postconviction.175
The Suspension Clause speaks of preserving a common law privi-
lege. Does the Suspension Clause also preserve access to certain due
process rightsor other procedural or substantive rights? Some
claim that regardless of their origins, the Framers meant to join the
concepts of due process and habeas corpus together.176 Due process
jurisprudence changed dramatically over time. Could those changes
affect the scope of habeas corpus? Could vast changes in the role of
federal courts, statutes regulating habeas, and notions of executive
power also affect habeas? At times, as noted, the Court assumed that
at a minimum the Suspension Clause protects only the writ as it exis-
ted in 1789.177 In other cases, the Court assumed the writ might
expand.178
Few expected that the Court would try to fix the affirmative
meaning of the Suspension Clause, but ultimately it did just that in its
post-9/11 decisions. To careful observers of the Courts decisions re-
garding habeas corpus and noncitizens in the immigration context,
the result should have been no surprise. Even without recognized due
process rights, habeas corpus plays an important role.
172 See Heck v. Humphrey, 512 U.S. 477, 48687 (1994) (determining that a criminally
convicted person cannot bring a civil suit challenging the conviction (e.g., for malicious
prosecution) until the conviction is overturned by reversal on appeal or by executive
pardon).
173 Pennsylvania v. Finley, 481 U.S. 551, 556 (1987) ([I]t is clear that the State need
not provide any appeal at all. (quoting Ross v. Moffitt, 417 U.S. 600, 611 (1974))).
174 Id. at 559.
175 Bearden v. Georgia, 461 U.S. 660, 666 (1983) (Whether analyzed in terms of equal
protection or due process, the issue cannot be resolved by resort to easy slogans or pigeon-
hole analysis . . . . (footnote omitted)); Griffin v. Illinois, 351 U.S. 12, 20 (1956); see also
Ake v. Oklahoma, 470 U.S. 68, 76 (1985) (recognizing a defendants due process right to
have the opportunity to participate meaningfully in a judicial proceeding in which his
liberty is at stake).
177 INS v. St. Cyr, 533 U.S. 289, 304 (2001). Daniel Meltzer has suggested that 1789 is
not the relevant year; 1789 is the year of the First Judiciary Act, not the Constitutional
Convention (1787) or ratification of the Constitution (1788). Meltzer, supra note 30, at 15 R
n.62.
178 See, e.g., Felker v. Turpin, 518 U.S. 651, 66364 (1996) (But we assume, for pur-
poses of decision here, that the Suspension Clause of the Constitution refers to the writ as
it exists today, rather than as it existed in 1789.).
II
FROM HAMDI TO BOUMEDIENE
The Supreme Court in Boumediene clarified that, standing alone,
the Suspension Clause ensures access to certain procedures: Even
when the procedures authorizing detention are structurally sound,
the Suspension Clause remains applicable and the writ relevant.179
The Court developed the substantive content of the process habeas
provides. This is not to say that process can be substantive, but rather
that process addresses the underlying question of whether the deten-
tion is authorized and is freestanding and distinct. Nevertheless, Jus-
tice Anthony Kennedys majority opinion drew from due process
principles to explain what process the Suspension Clause guaran-
tees.180 This triggered a vigorous debate with Chief Justice Roberts in
dissent about the relationship between habeas corpus and due pro-
cess.181 The Courts Hamdi ruling helps to explain how the Court
reached its Boumediene result, clarifying that habeas corpus alone en-
sures access to habeas process, which entails an independent review by
a federal judge to examine the legal and factual authorization for a
detention. This view of the Suspension Clause anchors the central
role for habeas corpus in regulating detentions.
A. Hamdi: Due Process and Habeas Process

1. The Mathews Test
The Supreme Courts plurality opinion in Hamdi v. Rumsfeld ulti-
mately relied on the Mathews v. Eldridge due process test, merely
touching on sources grounded in habeas corpus. This choice set the
stage for debates about the relationship between habeas and due
process.
Yaser Esam Hamdi was captured by Northern Alliance allies in
Afghanistan, who eventually turned him over to the U.S. military.182
After some unspecified screening, including interrogations, the U.S.
military brought him to Guantanamo Bay.183 The Executive had pre-
viously designated Guantanamo Bay as a center for indefinite deten-
tion of enemy combatants, who did not receive Prisoner of War
status and were interrogated without access to counsel.184 The mili-
tary concluded that Hamdi was an enemy combatant, to be detained

180 See infra Part II.B.3.
181 See infra Part II.C.
182 Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004) (plurality opinion).
183 Id.
184 See David Golove, United States: The Bush Administrations War on Terrorism in the
Supreme Court, 3 INTL J. CONST. L. 128, 12829 (2005).
indefinitely without formal charges or proceedings.185 When the

Executive determined that Hamdi was a U.S. citizen, the military
transferred him to a naval brig in Norfolk, Virginia, perhaps because
the government understood that Hamdis citizenship might lead to a
judicial opinion finding habeas jurisdiction over a Guantanamo
detainee.186
When Hamdi filed a habeas petition, the district court appointed
a federal defender and ordered that counsel be given access to
Hamdi, an order that the government appealed.187 Hamdi chal-
lenged his detention, relying on the Due Process Clause among his
claims.188 When pressed, the government submitted a declaration by
a defense department official familiar with the case, stating that the
government had deemed Hamdi an enemy combatant following re-
view by U.S. military screening team[s].189 Although the govern-
ments sole evidentiary support was hearsay, it maintained that the
judge was obligated to dismiss the petition so long as the government
could offer some evidence that Hamdi was an enemy combatant.190
The district court rejected that position, calling it little more than the
governments say-so, but the Fourth Circuit reversed.191
The Court, in a plurality opinion authored by Justice Sandra Day
OConnor, ultimately held that the case justified more searching re-
view. The Hamdi plurality relied on due process precedent, stating:
The ordinary mechanism that we use for balancing such serious com-
peting interests, and for determining the procedures that are neces-
sary to ensure that a citizen is not deprived of life, liberty, or
property, without due process of law . . . is the test that we articulated
in Mathews v. Eldridge . . . .192
The Mathews cost-benefit balancing test has its merits, including
its potential to lend transparency to interest balancing. It is not an
outlier approach either. As Stephen Gardbaum put it, We all live in
the age of constitutional balancing.193 But the Courts claim that the
Mathews test was the ordinary due process mechanism may have
been more controversial. Scholars have long argued that Mathews
185 Hamdi, 542 U.S. at 510, 513.

186 Id.
187 Id. at 512.
188 See id. at 511; see also 18 U.S.C. 4001(a) (2006) (No citizen shall be imprisoned or
otherwise detained by the United States except pursuant to an Act of Congress.).
189 Hamdi, 542 U.S. at 51213 (alteration in original).
190 See id. at 512, 527.
191 See id. at 51314.
192 Id. at 52829 (quoting U.S. CONST. amend. V).
193 Stephen Gardbaum, A Democratic Defense of Constitutional Balancing, 4 LAW & ETHICS
HUM. RTS. 78, 79 (2010). But see Frederick Schauer, A Comment on the Structure of Rights, 27
GA. L. REV. 415, 416 (1993) (criticizing from a philosophical angle the asserted intercon-
nectedness of rights with interests, powers, and consequences).
should be (and largely has been) confined to evaluating administra-

tive hearings.194 The Mathews analysis has been variously criticized for
its flexibility, rigidity, focus on quantifying costs, consequentialism,
failure to account for other valuesparticularly dignitary valuesand
for courts failure to quantify error rates or other interests.195 The
author of the Hamdi plurality, Justice OConnor, previously supported
applying Mathews in criminal cases.196 The Mathews test is useful, as
Justice OConnor noted, in the administrative context because there
is no historical practice to consider.197 In Hamdi, Justice OConnor
presumably viewed enemy combatant detention as similarly lacking
sufficient guidance from historical practice.
Justice Souter, joined by Justice Ruth Bader Ginsburg concurring,
did not agree with the pluralitys due process approach.198 The dis-
senters, however, more directly confronted the pluralitys due process
analysis. Justice Scalia mocked how the plurality claims authority to
engage in this sort of judicious balancing from Mathews v. Eldridge, a
case involving . . . the withdrawal of disability benefits!199 Justice Clar-
ence Thomas dissented, noting that the parties never relied on Ma-
thews, and such analysis, if appropriate, was incorrect: I do not think
that the Federal Governments war powers can be balanced away by
this Court.200
How does one weigh incommensurate and immeasurable inter-
ests, individual and national? Balancing interests in a national secur-
ity detention case would not be easy. The plurality acknowledged that
substantial interests lie on both sides of the scale in this case.201 The
194 See, e.g., Edward L. Rubin, Due Process and the Administrative State, 72 CALIF. L. REV.
1044, 113738 (1984).
195 See, e.g., Jerry L. Mashaw, The Supreme Courts Due Process Calculus for Administrative
Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value, 44 U. CHI. L.
REV. 28, 5354 (1976); Rubin, supra note 194, at 1046; Richard B. Saphire, Specifying Due R
Process Values: Toward a More Responsive Approach to Procedural Protection, 127 U. PA. L. REV.
111, 155 (1978); Lawrence B. Solum, Procedural Justice, 78 S. CAL. L. REV. 181, 25257
(2004).
196 Medina v. California, 505 U.S. 437, 454 (1992) (OConnor, J., concurring).
197 Id. at 45354.
198 Hamdi v. Rumsfeld, 542 U.S. 507, 55354 (2004) (Souter, J., concurring) (disagree-
ing with the suggestion that government should benefit from an evidentiary presumption
placing the burden on the detainee).
199 Id. at 57576 (Scalia, J., dissenting) (alteration in original) (citation omitted).
Scholars have criticized the Hamdi Courts use of the Mathews analysis. See, e.g., Goldstein,
supra note 40, at 1206 (noting the absence of a reliable scale upon which to measure and R
balance the detainees liberty interests against the governments national-security inter-
ests); Tung Yin, Procedural Due Process to Determine Enemy Combatant Status in the War on
Terrorism, 73 TENN. L. REV. 351, 355, 398400 (2006) (noting that the interests on both
sides can be described with apocalyptic intensity and that the test is likely to succumb to a
result-oriented malleability). I do not view the Mathews test as more or less malleable than
alternatives; it may be more transparent.
200 Hamdi, 542 U.S. at 579, 594 & n.5 (Thomas, J., dissenting).
201 Id. at 529 (plurality opinion).
private interest was the most elemental of liberty intereststhe inter-

est in being free from physical detention by ones own govern-
ment.202 Meanwhile, the government asserted its interest in assuring
that the enemy does not return to battle against the United
States.203 The Hamdi plurality did not assign numbers or weights, but
turned to the outcome: [A] citizen-detainee . . . must receive notice
of the factual basis for his classification, and a fair opportunity to re-
but the Governments factual assertions before a neutral deci-
sionmaker.204 The plurality left the particulars open. Hamdi would
continue to receive a lawyer.205 A court might admit hearsay evidence
and there might be a presumption in favor of the Governments evi-
dence.206 In dicta, the plurality suggested that due process need not
require judicial process and that the decision maker need not be an
Article III judge.207 Could the government comply with due process
but in doing so cut off habeas corpus review entirely?
2. Habeas Corpus Process

Perhaps most surprisingly, the Hamdi plurality did not heavily rely
on the habeas precedent described in Part I regarding executive de-
tentions. Since Hamdi was a U.S. citizen, the Court largely avoided
discussing cases that extend habeas to noncitizens lacking due process
protection. In several crucial passages, however, the plurality did sug-
gest that due process balancing did not end its analysis: [A] court
that receives a petition for a writ of habeas corpus from an alleged
enemy combatant must itself ensure that the minimum requirements
of due process are achieved.208 Habeas provides process both to as-
sess the adequacy of prior process and, more fundamentally, to ex-
amine the authorization for a detention. While the Mathews test may
provide guidance where there is no historical practice to con-
sider,209 habeas corpus involves a rich historical practice, which the
Hamdi plurality drew on. The plurality noted that [a]bsent suspen-
sion of the writ by Congress, a citizen detained as an enemy combat-
ant is entitled to this process.210 Specifically, that process provided
the chance to challenge the factual basis for the detention.211 It is
not due process alone but rather the Great Writ of habeas corpus
202 Id. (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)).

203 Id. at 531.
204 Id. at 533.
205 Id. at 539.
206 Id. at 53334.
207 Id. at 538 (There remains the possibility that the standards we have articulated
could be met by an appropriately authorized and properly constituted military tribunal.).
208 Id.
209 Medina v. California, 505 U.S. 437, 45354 (1992) (OConnor, J., concurring).
210 Hamdi, 542 U.S. at 537.
211 Id.
[which] allows the Judicial Branch to play a necessary role . . . as an

important judicial check on the Executives discretion in the realm of
detentions.212
The importance of this part of the plurality ruling remains under-
appreciated, perhaps because of its lack of clarity.213 The plurality in-
dicated that the Suspension Clause ensured the availability of habeas
corpus, years before the Boumediene Court decided the question. The
plurality cited to 42 U.S.C. 2241 and various companion provi-
sions,214 which provide at least a skeletal outline of the procedures to
be afforded a petitioner in federal habeas review, including the abil-
ity to take evidence in habeas proceedings by deposition, affidavit, or
interrogatories.215 The plurality concluded that Congress envi-
sioned that habeas petitioners would have some opportunity to pre-
sent and rebut facts and that courts in cases like this retain some
ability to vary the ways in which they do so as mandated by due pro-
cess.216 The plurality relied not only on federal habeas statutes but
also on the Suspension Clause. The plurality noted that absent a sus-
pension, [a]t all other times, [habeas corpus] has remained a critical
check on the Executive, ensuring that it does not detain individuals
except in accordance with law.217 The Hamdi plurality relied on the
skeletal outline of habeas process set out in statutes218 and, crucially,
judicial power grounded in the Suspension Clause and independent
of the adequacy of prior process.
3. A Thicker Due Process?
Two dissenters advanced a simpler view of the relationship be-

tween the Suspension Clause and the Due Process Clause. Justice
Scalia, joined by Justice John Paul Stevens, viewed the two clauses as
intimately connected. Justice Scalia called habeas corpus the instru-
ment by which due process could be insisted upon by a citizen illegally
imprisoned.219 But Justice Scalia would not engage in a balancing of
interests to decide what process was due.220 Habeas corpus would sim-
212 Id. at 536.

213 Jonathan Hafetz is one commentator who focuses on this language and not exclu-
sively on Hamdis due process language. Jonathan Hafetz, Habeas Corpus, Judicial Review,
and Limits on Secrecy in Detentions at Guantanamo, 5 CARDOZO PUB. L. POLY & ETHICS J. 127,
15758 (2006) ([C]ourts have looked to habeas corpus as an independent source of pro-
cedural protections . . . .).
214 42 U.S.C. 2241, 2243, 2246 (2006).
215 Hamdi, 542 U.S. at 525.
216 Id. at 526.
217 Id. at 525.
218 Id.
219 Id. at 55556 (Scalia, J., dissenting).
220 See supra note 208. R
ply require release.221 He pointed out that [t]he role of habeas

corpus is to determine the legality of executive detention, not to sup-
ply the omitted process necessary to make it legal.222 Habeas corpus
does supply processto review authorization of a detention. That re-
view does not absolve a court of the responsibility to release a person
whose detention is unauthorized. Justice Scalia rejected importing
the questionable Mathews analysis, which has no place where the
Constitution and the common law already supply an answer.223
Habeas corpus required a due process right of trial before a compe-
tent tribunal, since detention without a trial has traditionally been
only narrowly permitted.224
The dispute between the majority and dissent relates to the con-
nection between habeas corpus and due processand also the con-
tent of each. The Hamdi plurality did not explain its use of Mathews
balancing, nor the full contours of the process that indefinitely de-
tained citizens would receive. The Boumediene Court would later more
fully address habeas process and its contours.
B. Boumediene and Due Process

Four years after Hamdi, the Court finally confronted whether
habeas corpus can supply rights where due process might not. In do-
ing so, the Court revisited questions it had engaged with long before
in immigration habeas rulings, and it reiterated, over vigorous dis-
sents, that habeas corpus can supply process where due process does
not.
After the Courts rulings in Hamdi and Rasul v. Bush,225 finding
that habeas jurisdiction was available at Guantanamo Bay, the govern-
ment released Yaser Hamdi,226 and, within weeks, created a new pro-
cess to evaluate the status of Guantanamo Bay detainees.227 The
Deputy Secretary of Defense established Combatant Status Review
221 Trevor Morrison explored the implications of Justice Scalias views, which he help-
fully terms suspension as authorization. Trevor W. Morrison, Hamdis Habeas Puzzle: Sus-
pension as Authorization?, 91 CORNELL L. REV. 411, 424 (2006).
222 Hamdi, 542 U.S. at 576 (Scalia, J., dissenting).
223 Id.
224 See id. at 556 (Scalia, J., dissenting) (citing 3 JOSEPH STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES 1783, at 661 (Boston, Hilliard, Gray, & Co. 1833));
Tyler, Is Suspension a Political Question?, supra note 21, at 384 n.280 (The Court correctly R
held that due process governed the inquiry; its conclusion, by contrast, that all due process
promised the citizen-detainee was a hearing on his status was troubling.).
225 542 U.S. 466 (2004).
226 Press Release, U.S. Dept of Justice, Statement of Mark Corallo, Dir. of Pub. Affairs,
Regarding Yaser Hamdi (Sept. 22, 2004), available at http://www.justice.gov/opa/pr/
2004/September/04_opa_640.htm.
227 See Memorandum from Paul Wolfowitz, U.S. Deputy Secy of Def., to the Secy of
the Navy 14 (July 7, 2004), available at http://www.defense.gov/news/jul2004/
d20040707review.pdf.
Tribunals (CSRTs) to assess whether each Guantanamo detainee was

an enemy combatant in order to comply with the due process re-
quirements identified by the plurality in Hamdi.228 CSRTs did not
provide lawyers.229 CSRTs did, however, provide an assigned Personal
Representative who could assist and explain the process, but was not
an advocate.230 The deciding tribunal consisted of three military of-
ficers.231 The detainee could present evidence, but the tribunal oper-
ated under the rebuttable presumption that government evidence was
reliable and accurate.232 Detainees who denied any affiliation with
al-Qaeda promptly challenged the hearings as inadequate. One dis-
trict judge took the view that aliens detained outside the United States
lacked rights under the Due Process Clause and dismissed the peti-
tions.233 A second judge disagreed and concluded the detainees had
due process rights.234 Both judges relied on the Due Process Clause.
Meanwhile, Congress enacted the Detainee Treatment Act of
2005 (DTA), which significantly restricted judicial review of CSRT de-
terminations and military trials of enemy combatants, permitting only
review of narrow issues in the D.C. Circuit Court of Appeals.235 The
Court in Hamdan v. Rumsfeld ruled that the DTA did not apply retroac-
tively, rendering it ineffective, as the government had ceased adding
to the Guantanamo Bay detainee population by 2005.236 In response,
Congress enacted the Military Commissions Act of 2006 (MCA), which
provided that the DTA applied retroactively, restricting habeas review

229 See Memorandum from Paul Wolfowitz, supra note 227, at 1. R
230 See id.
231 Id.
232 Mark Denbeaux & Joshua W. Denbeaux, No-Hearing HearingsCSRT: The Modern
Habeas Corpus? 5 (Seton Hall Pub. Law, Research Paper No. 951245, 2006), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=951245#%23 (examining how
CSRTs worked in practice); see also Baher Azmy, Rasul v. Bush and the Intra-Territorial Consti-
tution, 62 N.Y.U. ANN. SURV. AM. L. 369, 399400 (2007) (describing the CSRT process);
Memorandum from Paul Wolfowitz, supra note 227, at 3 (permitting introduction of de- R
tainee evidence but with a rebuttable presumption in favor of government evidence).
233 Khalid v. Bush, 355 F. Supp. 2d 311, 314 (D.D.C. 2005).
234 In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 464 (D.D.C. 2005).
235 Pub. L. No. 109-148, 1005, 119 Stat. 2739, 274042 (limiting review to the ques-
tions of whether the government executed CSRTs in accordance with U.S. law and in ac-
cordance with the standards and procedures promulgated by the Secretary of Defense,
including the requirement that the conclusion of the Tribunal be supported by a prepon-
derance of the evidence and allowing a rebuttable presumption in favor of the Govern-
ments evidence).
236 Hamdan v. Rumsfeld, 548 U.S. 557, 57487 (2006); see Aziz Z. Huq, What Good is
Habeas?, 26 CONST. COMMENT. 385, 40105 (2010) ([T]he aggregate detention population
at Guantanamo peaked in 2003 and has been dropping ever since. Anecdotal information
suggests that inflows to the base in fact largely dried up in 2004, after the Supreme Courts
first interventions in the field.).
to the D.C. Circuit and limiting review to whether the process com-
plied with CSRT procedures and the Constitution.237
Like the district courts, the D.C. Circuit relied on the Due Pro-
cess Clause when reviewing habeas petitions. For example, the D.C.
Circuit dismissed the consolidated cases of Lakhdar Boumediene and
five Algerian men who were arrested in Bosnia, detained at Guanta-
namo, and accused of having links to al-Qaeda and planning to bomb
a U.S. Embassy.238 The court reasoned that the petitioners were held
outside the United States, had no constitutional rights under either
the Suspension Clause or the Due Process Clause, and that regardless,
Congress had stripped federal courts of jurisdiction.239 On appeal,
the Supreme Court relied on the Suspension Clause, not the Due Pro-
cess Clause, and ultimately concluded that the MCA procedures were
not an adequate and effective substitute for habeas corpus, and they
operate[d] as an unconstitutional suspension of the writ.240 This
language, which found for the first time that a statute unconstitution-
ally suspended the writ, has justifiably been the focus of commentary.
1. Retelling Habeas History

Before turning to the constitutional questions, however, the
Court began with a brief account of the history and origins of the
writ.241 Telling and retelling the history of the writ is an ingrained
judicial habit, appearing in decisions ranging from Fay v. Noia, with
the ringing language quoted earlier,242 to McCleskey v. Zant,243 with
varying degrees of detail (and accuracy). The Boumediene Court began
by gingerly connecting Magna Carta and habeas corpus. Magna
Carta decreed that no man would be imprisoned contrary to the law
of the land . . . [but] prescribed no specific legal process to enforce
[this principle].244 The Court added that gradually the writ of
habeas corpus became the means by which the promise of Magna
Carta was fulfilled.245 The Court cited three times to Paul Hallidays
work researching Kings Bench records, describing a habeas practice
237 28 U.S.C. 2241(e) (2006); Military Commissions Act of 2006, Pub. L. No. 109-366,
7(b), 120 Stat. 2600, 2636 (providing that the amendment to 28 U.S.C. 2241(e) would
apply to all cases, without exception, pending on or after the date of the enactment).
238 Del Quentin Wilber, Cases Against Detainees Have Thinned, WASH. POST, Nov. 2, 2008,
at A2; Andy Worthington, Profiles: Odah and Boumediene, BBC NEWS (Dec. 4, 2007, 5:48 PM),
http://news.bbc.co.uk/2/hi/7120713.stm.
239 Boumediene v. Bush, 476 F.3d 981, 99294 (D.C. Cir. 2007).
241 Id. at 739.
242 Supra note 84 and accompanying text. R
243 499 U.S. 467, 47879 (1991).
244 Boumediene, 553 U.S. at 740 (citing SOURCES OF OUR LIBERTIES: DOCUMENTARY ORI-
GINS OF INDIVIDUAL LIBERTIES IN THE UNITED STATES CONSTITUTION AND BILL OF RIGHTS 17
(Richard L. Perry & John C. Cooper eds., 1959)).
245 Id. (citing 9 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 112 (1926)).
very different from the habeas practice historians and judges often
detail.246 Importantly, and perhaps because of this historical ground-
ing, the Court did not directly link habeas corpus to due process. In-
stead, the Court more accurately described how habeas corpus
became part of the foundation of liberty for the Kings subjects,
even though the writ developed as common-law courts sought to en-
force the Kings prerogative.247
The Court did not clearly establish whether the Suspension
Clause protects the scope of the writ as it existed at the time it was
drafted or whether the scope of the writs protections ha[s] ex-
panded since the Founding.248 Instead, the Court focused on the
development of habeas as a source of power and its growth to encom-
pass detentions of aliensincluding those abroadso long as the
jailer could be held accountable as the Kings agent.249 In my view,
this is the proper approach; if habeas corpus is a dynamic judicial in-
stitution, as history tells us, we should not select an isolated moment
in time to fix its definition.
2. The Suspension Clause Alone?

The Boumediene Court ostensibly did not rely on the Due Process
Clause to ground its opinion. Instead, the Court noted that [e]ven if
we were to assume that the CSRTs satisfy due process standards, it
would not end our inquiry.250 The Court went on to explain that the
Suspension Clause has independent force: Even when the proce-
dures authorizing detention are structurally sound, the Suspension
Clause remains applicable and the writ relevant.251 This passage in
the Courts opinion was remarkable. The opinion received substantial
attention for this first-time holding that the Suspension Clause was
violated and provided a source for judicial review to noncitizen detain-
ees who might not enjoy rights under the Due Process Clause.252 The
opinion has also received deserved attention for its discussion of sepa-
ration of powers principles.253 The Court noted that [t]he separa-
246 Id. at 740, 747, 752 (citing Halliday & White, supra note 32, at 586). R
247 Id. at 74041.
248 Id. at 746 (noting that the analysis may begin with precedents as of 1789).
249 See id. at 751 ([A] categorical or formal conception of sovereignty does not pro-
vide a . . . satisfactory explanation for the general understanding that prevailed. . . . En-
glish law did not generally apply in Scotland . . . , but it did apply in Ireland. . . . This
distinction, and not formal notions of sovereignty, may well explain why the writ did not
run to Scotland . . . but would run to Ireland.).
250 Id. at 785.
251 Id.
252 See supra note 30. R
253 Stephen I. Vladeck, Common-Law Habeas and the Separation of Powers, 95 IOWA L. REV.
BULL. 39, 51 (2010). The Hamdi plurality also contains important separation-of-powers
language. See Hamdi v. Rumsfeld, 542 U.S. 507, 53536 (2004) (plurality opinion) ([T]he
tion-of-powers doctrine, and the history that influenced its design,

therefore must inform the reach and purpose of the Suspension
Clause.254 Repeatedly, the majority cited to the writs historical pur-
pose as a check on arbitrary exercise of executive discretion.255 Tak-
ing that language seriously, the Court emphasized that habeas is an
independent judicial process, which does not require assertion of any
underlying due process or constitutional violation. Further, the Sus-
pension Clause draws meaning from its structural role in the Constitu-
tion as a check on Congress and the Executive: it is an indispensable
mechanism for monitoring the separation of powers.256 What then
does the resulting Suspension Clause process consist in?
Reflecting a view that the meaning of the Suspension Clause is
not fixed in time, the Boumediene majority drew on modern due pro-
cess sources, while rejecting the view that habeas requires assertion of
underlying due process rights. The Court suggested that the Due Pro-
cess Clause influenced its analysis in a striking passage:
The idea that the necessary scope of habeas review in part de-
pends upon the rigor of any earlier proceedings accords with our
test for procedural adequacy in the due process context. See Ma-
thews v. Eldridge, 424 U.S. 319, 335 (1976) (noting that the Due Pro-
cess Clause requires an assessment of, inter alia, the risk of an
erroneous deprivation of [a liberty interest;] and the probable
value, if any, of additional or substitute procedural safeguards).257
I will return to the Mathews citation. The language stating that process
depends on the rigor of any earlier proceedings is not inconsistent
with a focus on habeas process.258 A reviewing judge may have far less
work to do if earlier proceedings have already developed a record.
In the next passage, the Court developed how much process
habeas must provide by turning to rulings regarding adequate and
effective substitutes for habeas corpus.259 The Court cited to United
States v. Hayman260 and Swain v. Pressley,261 the two cases in which the
Court inquired into the adequacy of substitute habeas procedures
though the prisoners were detained pursuant to the most rigorous
position that the courts must forgo any examination of the individual case . . . cannot be
mandated by any reasonable view of separation of powers . . . .).
255 Id. at 74445, 785, 794, 797; Martin J. Katz, Guantanamo, Boumediene, and Jurisdic-
tion-Stripping: The Imperial President Meets the Imperial Court, 25 CONST. COMMENT. 377,
41112 (2009); Vladeck, supra note 30, at 211011. But see Huq, supra note 236, at 386, 395 R
(describing a touch of the ineffable to the Courts separation-of-powers discussion).
257 Id. at 781 (alteration in original).
258 See id.
259 See id. at 733.
260 342 U.S. 205 (1952).
261 430 U.S. 372 (1977).
proceedings imaginable, a full criminal trial.262 The Court distin-

guished Hayman and Swain, concluding that the MCA test[s] the lim-
its of the Suspension Clause in ways that Hayman and Swain did
not.263 The statutes in Hayman and Swain dealt with postconviction
challenges brought after a trial;264 they did not address executive de-
tention. Both statutes sought to replicate habeas corpus, attempting
to streamline collateral review without limiting access to judicial re-
view. Both statutes also contained safety valves permitting a convict to
file a habeas petition if substitute review was not adequate or effec-
tive.265 Neither of the adequate substitute cases dealt with cutting
off judicial review of detentions.
While establishing the independent force of the Suspension
Clause, the Boumediene Court also addressed the relationship between
habeas corpus and due process. The Court noted that [w]here a per-
son is detained by executive order, rather than, say, after being tried
and convicted in a court, the need for collateral review is most press-
ing.266 Although the Court also added that the scope of the under-
lying detention proceedings could affect the scope of habeas, the
Court referred to cases involving prior military trials, where one would
expect deference to prior juridical determinations.267
Thus, the Court emphasized that habeas corpus serves a special
role where prior judicial process is lacking, and if prior process is in-
adequate, habeas corpus will serve a greater role. Citing to the histori-
cal purposes of the writ, the Court noted that common-law habeas
corpus was, above all, an adaptable remedy.268 The Court stressed
that the judicial officer must have adequate authority to make a de-
termination in light of the relevant law and facts and to formulate and
issue appropriate orders for relief, including, if necessary, an order
directing the prisoners release.269 In sum, the Suspension Clause
ensures access to process and a remedy. The Hamdi plurality said as
much, but less explicitly.270 The Boumediene Court cited to evidence
that, despite the supposed black-letter rule that common law courts
would not examine facts in the jailers return, courts did review such
facts, and similarly, U.S. practice routinely allowed prisoners to intro-

263 Id. at 779.
264 See Swain, 430 U.S. at 385 (Burger, C.J., concurring) (noting that traditionally the
writ was used to inquire into the cause of commitment not pursuant to judicial process);
supra note 262 and accompanying text. R
265 28 U.S.C. 2255 (2006); D.C. CODE 3-110(g) (2001).
267 Id. at 786 (citing In re Yamashita, 327 U.S. 1 (1946), and Ex parte Quirin, 317 U.S. 1
(1942)).
269 Id. at 787.
duce exculpatory evidence that was either unknown or previously un-

available to the prisoner.271
The Court emphasized that a detainee must have an opportunity
to develop not just facts but also law, in order to determine whether
the detention is based on erroneous application or interpretation of
law.272 By drawing on common-law habeas corpus and more recent
habeas sources, the Court outlined an affirmative vision of the Suspen-
sion Clause that focuses on the availability of the release remedy, an
examination of questions of law, and fact-findingin short, whether
through habeas or a substitute the detainee will receive a traditional
habeas corpus process.273
3. Influence of Due Process on Habeas

Given this framework, the Court also had to decide whether an
alternative form of judicial process was an adequate or effective
substitute for habeas. To make this determination, the Court did not
solely rely on sources grounded in a traditional habeas process con-
nected to review of executive detentions. Instead, the Court noted
that the necessary scope of habeas review in part depends upon the
rigor of any earlier proceedings274 and cited to Mathews.275 Yet,
habeas is less sensitive to prior process in the detention context, since
[e]ven when the procedures authorizing detention are structurally
sound, the Suspension Clause remains applicable and the writ rele-
vant.276 After noting that the Suspension Clause independently
secures traditional habeas corpus process, the Court illustrated its
understanding by turning to an analysis mirroring that in Hamdi.
The Court proceeded by analogizing the Suspension Clause in-
quiry to the quest for factual accuracy in the procedural due process
balancing test of Mathews v. Eldridge.277 When turning to whether
CSRTs could adequately find facts, the Court stated: Although we
make no judgment whether the CSRTs, as currently constituted, sat-
isfy due process standards, we agree with petitioners that . . . there is
considerable risk of error in the tribunals findings of fact.278 In the
same breath that the Court disclaimed a due process analysis, the
Court cited to a Mathews-type due process concern with risk of error.
Outside the context of Mathews balancing, error is an important due
process concern; procedural due process rules generally seek to pre-

272 Id. at 779 (quoting INS v. St. Cyr, 533 U.S. 289, 302 (2001)).
273 Id. at 77879.
274 Id. at 781.
275 424 U.S. 319, 335 (1976).
277 Neuman, supra note 30, at 554. R
vent mistaken or unjustified deprivation of life, liberty, or prop-

erty.279 The Boumediene Court tied risk of error to inadequacy of
CSRT process.280 The Court added that the private interest was great
given that the consequence of error may be detention of persons for
the duration of hostilities that may last a generation or more.281
With this sort of informal balancing, the Court generated a set of
procedures. First, the Court explained that the habeas court must
have the means to correct errors that occurred during the CSRT pro-
ceedings.282 The court must have some authority to assess the suffi-
ciency of the Governments evidence against the detainee, suggesting
more searching review than required by the Due Process Clause.283
Further, the court must provide access to discovery and must have
the authority to admit and consider relevant exculpatory evidence
that was not introduced during the earlier proceeding.284
In that passage, the Court made another remarkable but little-
noticed move, suggesting a due process source unrelated to Mathews,
sounding instead in criminal procedure. Based on Brady v. Maryland
and its progeny, the state must provide material exculpatory evidence
to the defense at a criminal trial.285 In the national security detention
context, far more than in the criminal prosecution context, evidence
may be almost entirely within the governments custody; indeed it may
be dispersed among different federal agencies. However, the Court
did not use the word material, which limits what the state must dis-
close under the Brady rule.286 Instead, the Court stated that the state
must disclose relevant evidence.287 This suggests a broader discov-
ery standard than at a criminal trial, which is sensible, as habeas pro-
cess does not culminate in a trial but rather judicial review of the
evidence.
Still, the Court left important issues open, as in Hamdi. The
Court did not define the standard for granting discovery, the burden
of proof, or the underlying standard for detention. Nor did the Court
rule out the possibility that some other judicial process could be con-
279 Carey v. Piphus, 435 U.S. 247, 259 (1978).

280 See 553 U.S. at 785 (This is a risk inherent in any process that, in the words of the
former Chief Judge of the Court of Appeals, is closed and accusatorial. (citing Bismullah
v. Gates (Bismullah III), 514 F.3d 1291, 1296 (D.C. Cir. 2008) (per curiam))).
281 Id.
282 Id. at 786.
283 Id.; see supra notes 10815 and accompanying text. R
285 Brady v. Maryland, 373 U.S. 83, 87 (1963) (We now hold that the suppression by
the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.); see infra Part III.A.
286 See Brady, 373 U.S. at 87.
stitutionally adequate: We do not endeavor to offer a comprehensive

summary of the requisites for an adequate substitute for habeas
corpus.288
The Court was clear in rejecting the view that the Due Process
Clause supplants habeas corpus, and it did not suggest that the Due
Process Clause incorporates habeas corpus.289 The Suspension Clause
operates independently. The Court cited to habeas cases and federal
habeas practice, noting that [f]ederal habeas petitioners long have
had the means to supplement the record on review, even in the post-
conviction habeas setting.290 At times the Court highlighted the im-
portance of having an Article III court in the exercise of its habeas
corpus function review the record.291 As part of the mixed discus-
sion, the Court also drew from due process principles and jurispru-
dencebut in a careful way, without suggesting that due process
applied or operated as a limit. The Boumediene Court walked a deli-
cate line. The Court clearly felt it needed to describe habeas process
in some detail, justifiably fearing that lower courts would not comply
with a bare command to simply examine authorization for a deten-
tion. Nor was the Court wrong to make the links to Mathews and
Hamdi.292 The Court, after all, articulated throughout that it relied on
the Suspension Clause alone to secure habeas process independent of
any prior process.
C. What is an Adequate Substitute for Habeas?

Dissenting Justices advocated a different view of the relationship
between the Suspension Clause and the Due Process Clause. In par-
ticular, the debate between the majority and Chief Justice Roberts elu-
cidates the difference between using a due process versus a habeas
process analysis.
Roberts began his dissent by defining habeas corpus in procedu-
ral terms, stating: Habeas is most fundamentally a procedural right, a
mechanism for contesting the legality of executive detention.293

289 See HERTZ & LIEBMAN, supra note 121, 7.2[d]; supra note 30 and accompanying R
text; see generally Jordan Steiker, Incorporating the Suspension Clause: Is There a Constitutional
Right to Federal Habeas Corpus for State Prisoners?, 92 MICH. L. REV. 862 (1994) (discussing the
possibility that the Fourteenth Amendment Due Process Clause incorporates the Suspen-
sion Clause against the states).
291 Id. at 790.
292 Cf. Neuman, supra note 30, at 553 (noting the Mathews citation as [p]erhaps the R
most significant innovation of the Boumediene opinion, which could be cause for regret).
293 Boumediene, 553 U.S. at 802 (Roberts, C.J., dissenting). Chief Justice Roberts also
accused the Court of providing due process protections to Guantanamo detainees, but
without bothering to say what due process rights the detainees possess. Id. at 801 (Rob-
erts, C.J., dissenting).
Robertss view is that due process analysis can displace habeas analysis,
placing him in dispute with the majority about the relationship be-
tween due process and habeas corpus. The Boumediene petitioners
were not citizens (only Hamdi and two others detained abroad post-9/
11 have been U.S. citizens).294 Roberts argued, [S]urely the Due Pro-
cess Clause does not afford non-citizens in such circumstances greater
protection than citizens are due.295 He added that if prior CSRT pro-
cess was adequate, there is no need to reach the Suspension Clause
question since [d]etainees will have received all the process the
Constitution could possibly require, whether that process is called
habeas or something else.296 He ignored, however, that habeas can
offer noncitizens more than due process; habeas may be a mecha-
nism for contesting the legality of a detention, but it is not merely a
procedural right.297
The Boumediene majority opinion almost entirely spoke past the
dissent, because it adopted a fundamentally different view that the
Suspension Clause guarantees a process independent of due process.
As a result, the Court also had a completely different view of Hamdi
and the adequacy of the DTA. The Court pointed out that Hamdi was
not a case about habeas process, but rather due process: None of the
parties in Hamdi argued there had been a suspension of the writ. Nor
could they.298 As a result, the Hamdi plurality concentrated on
whether the Executive had the authority to detain and, if so, what
rights the detainee had under the Due Process Clause.299 The
Boumediene Court noted crucially that there are places in the Hamdi
plurality opinion where it is difficult to tell where its extrapolation of
2241 ends and its analysis of the petitioners Due Process rights be-
gins.300 As a result, the Hamdi plurality had no occasion to define
the necessary scope of habeas review, for Suspension Clause
purposes.301
Roberts countered that due process should begin and end the
analysis, analogizing to postconviction habeas. As the majority noted,
the DTA provided for a form of judicial review of detentions, includ-
294 Jeffrey Kahn, Responses to the Ten Questions, 36 WM. MITCHELL L. REV. 5041, 5042
(2010).
296 Id. (Roberts, C.J., dissenting).
297 Id. at 802 (Roberts, C.J., dissenting).
298 Id. at 784.
299 Id.
300 Id.
301 Id. (The closest the plurality came to doing so was in discussing whether, in light
of separation-of-powers concerns, 2241 should be construed to prohibit the District
Court from inquiring beyond the affidavit Hamdis custodian provided in answer to the
detainees habeas petition. The plurality answered this question with an emphatic no.
(citing Hamdi v. Rumsfeld, 542 U.S. 507, 527, 53536 (2004))).
ing review in the D.C. Circuit of CSRT standards and procedures

and whether they are lawful.302 Roberts argued that this administra-
tive process, followed by judicial review, should be pursued before en-
tertaining a habeas petition.303 Roberts deemed CSRTs the first tier
of collateral review.304
Robertss argument has faced the criticism that [u]nless [it] was
inadvertently misphrased, it totally misconceives the scope of the
writ.305 Indeed, postconviction habeas was an inapposite analogy in
the detention context. CSRTs are not collateral; they do not follow a
final judgment that receives deference. The Boumediene Court prop-
erly considered the executive decision to detain and ongoing adminis-
trative reassessment in CSRTs as perhaps relevant to due process
analysis but irrelevant to habeas process, where the question is
whether detentions are legally authorized. The Court suggested that
CSRTs were error prone,306 perhaps influenced by a report describing
shoddy CSRT process, which noted that [t]he Government did not
produce any witnesses in any hearing and did not present any docu-
mentary evidence to the detainee prior to the hearing in 96% of the
cases.307
For the majority, the question was not whether the DTA scheme
satisfied due process. Instead, the Court asked whether the scheme
was an effective substitute for habeas corpus. The Court held that
DTA review of CSRT standards and procedures was not an effective
substitute where the courts of appeals had no clear ability to: (i) de-
velop facts, (ii) consider evidence outside the record, (iii) examine
authorization for detention, or (iv) provide the remedy of release.308
All Justices agreed that the scope of habeas corpus review may be
sensitive to prior process, and all Justices also agreed that the Suspen-
sion Clause either guarantees a right to habeas process or an adequate
substitute. The Court took the view that the adequate-substitute analy-
sis is a habeas analysisasking whether federal judges retain indepen-
302 See id. at 788 (describing the Detainee Treatment Act of 2005, Pub. L. No. 109-148,
1005(e)(2), 119 Stat. 2739, 274243).
303 Id. at 805 (Roberts, C.J., dissenting) ([I]t is not necessary to consider the availabil-
ity of the writ until the statutory remedies have been shown to be inadequate to protect the
detainees rights.).
304 Id. at 810 (Roberts, C.J., dissenting).
305 Neuman, supra note 30, at 547. R
306 Boumediene, 553 U.S. at 785 ([T]here is considerable risk of error in [CSRT] find-
ings of fact.).
307 Denbeaux & Denbeaux, supra note 232, at 2; see also Boumediene v. Bush, 476 F.3d R
981, 100607 (D.C. Cir. 2007) (Rogers, J., dissenting) (citing Denbeaux & Denbeaux, supra
note 232, at 3739) (mentioning the study in the course of determining that CSRT process R
is not an adequate substitute for the habeas writ); Marc D. Falkoff, Litigation and Delay at
Guantanamo Bay, 10 N.Y. CITY L. REV. 393, 394 (2007) (describing Guantanamo detainees
as denied absolutely their day in court).
308 See Boumediene, 553 U.S. at 78890.
dent ability to fully examine the authorization for a detentionand

not a due process analysis, which would simply ask whether at any
stage some actor provides some minimally adequate process. The
Court, in my view, had the analysis right.
The only nonpostconviction decision in which the Court has sug-
gested there could be an adequate substitute for habeas is INS v. St.
Cyr, which Roberts relied upon in his Boumediene dissent.309 The St.
Cyr decision supports, in fact, the Boumediene majority. The Court, in
St. Cyr, suggested that Congress could provide an adequate substi-
tute to habeas review of immigration detention, but also that serious
constitutional questions would be raised under the Suspension
Clause should statutes be interpreted to bar review of constitutional or
legal questions.310 Indeed, the Courts St. Cyr decision emphasized
that the scope of habeas review must remain at its broadest in the
detention context.311 The Courts Boumediene decision also high-
lighted how the Suspension Clause ensures adequate and effective re-
view of not just constitutional and legal questions but also of factual
questions.
Most important, though, was the distinction brought out by the
dialogue with Robertss dissent, emphasizing that prior executive pro-
cess, while relevant to a due process analysis, does not absolve the judi-
ciary of its Suspension Clause obligation to conduct a habeas process
asking whether a detention is authorized.312 This distinction strength-
ens the view that judges should treat habeas corpus as independent of
due process.
D. Process and Jurisdiction

The Boumediene Court drew from due process in a second, less
supported way. The Court incorporated a due processtype analysis
into the question of whether a court has what it termed jurisdiction
to entertain a habeas petition by an alien detained abroad. Due pro-
cess may not limit process under the Suspension Clause, but it informs
the geographic scope of the writ. The issue of extraterritorial jurisdic-
tion is complex and has been carefully analyzed elsewhere.313 For
309 Id. at 814 (Roberts, C.J., dissenting) (citing INS v. St. Cyr, 533 U.S. 289, 306
(2001)).
310 See 533 U.S. at 301 n.13, 30405, 314 & n.38.
311 Id. at 301.
313 See generally Anthony J. Colangelo, De Facto Sovereignty: Boumediene and Beyond,
77 GEO. WASH. L. REV. 623 (2009) (describing de facto sovereignty and its relationship to
habeas in the extraterritorial detention context); Ernesto Hernandez-Lopez, Boumediene
v. Bush and Guantanamo, Cuba: Does the Empire Strike Back?, 62 SMU L. REV. 117, 16788
(2009) (discussing the legal anomaly of the United States extraterritorial reach into
Guantanamo); Neuman, supra note 38 (examining Boumedienes functional approach to R
extraterritorial application of U.S. constitutional limitations).
these purposes, I note that the Court distilled the extraterritorial

reach of the Suspension Clause into a three-factor framework: (1)
the citizenship and status of the detainee and the adequacy of the
process through which that status determination was made; (2) the
nature of the sites where apprehension and then detention took
place; and (3) the practical obstacles inherent in resolving the pris-
oners entitlement to the writ.314 The first factor includes three sub-
factors, and the sites of apprehension and detention might be
different, creating six subparts in total.
Of particular interest here is the last subfactor within the first fac-
tor. In requiring an examination of the adequacy of prior process to
establish jurisdiction to hear a habeas petition, the Court focused on
due process once again. The Court contrasted adequacy of the pro-
cess provided in Johnson v. Eisentrager315 with informal CSRT process.
In Eisentrager, German operatives initially captured in China and then
detained in Germany after World War II received a detailed charge
and military trial, at which the court convicted them of violating the
law of war (although military trials were rather summary at the time,
they were at least adversary and the defendants received counsel).316
One of the crucial differences between Boumediene and Eisentrager was
that the Guantanamo detainees disputed that they were detainable en-
emies, whereas the Eisentrager operatives did not contest their
status.317
This portion of the Boumediene opinion is inconsistent with the
thrust of the habeas process outlined, designed to inquire into the
cause of a detention. The Courts prior ruling in Rasul v. Bush that
Guantanamo detainees have jurisdiction to file habeas petitions
adopted a different approach, viewing jurisdiction as concerned pri-
marily with the ability of the court to command the jailer.318 The
Boumediene Court instead viewed jurisdiction as flexible and connected
with the detainees identity and citizenship, together with other practi-
cal considerations.319 Where the Court otherwise held that habeas

315 339 U.S. 763 (1950).
316 Id. at 76566, 78081.
317 See Boumediene, 553 U.S. at 76667.
318 See 542 U.S. 466, 47879 (2004).
319 Justice Kennedy advanced the same Eisentrager framework in his concurring opin-
ion in Rasul. See id. at 48588 (Kennedy, J., concurring). Prior to Rasul, the issue of the
extraterritorial reach of constitutional rights and habeas corpus jurisdiction had arisen in
several contexts, each discussed in Boumediene and extensively analyzed in the scholarly
literature. For example, immigration decisions adopt a territorial view that an alien, until
admitted into the United States, does not possess due process rights. See United States ex
rel. Knauff v. Shaughnessy, 338 U.S. 537, 54244 (1950) (Whatever the procedure author-
ized by Congress is, it is due process as far as an alien denied entry is concerned. (citing
Nishimura Ekiu v. United States, 142 U.S. 651 (1892), and Ludecke v. Watkins, 335 U.S.
160 (1948))); David A. Martin, Graduated Application of Constitutional Protections for Aliens:
process reaches further than due process, the jurisdictional holding

recognizes that practicalities may limit the reach of habeas process.
III
PROCESS IN THE SHADOW OF BOUMEDIENE
In Boumediene, the Court established that the Suspension Clause is
a source of habeas process for detainees; to give that process contours,
however, the Court turned to due process sources.320 The Court did
not answer the key question whether enemy alien detainees have
any due process rights.321 Chief Justice Roberts, in dissent, argued
that the result would lead to a set of shapeless procedures.322 Rob-
erts may have predicted correctly, but perhaps only because lower
courts have adopted reasoning mirroring his dissent by focusing on
due process, not habeas process. The Court left it to the lower courts
to fill in the details,323 and in response, they drew broadly from due
process and habeas jurisprudence.324 The D.C. Circuit has noted that
Boumediene did not provide a detailed procedural regime but rather
a spare but momentous guarantee that a judicial officer must have
adequate authority to make a determination in light of the relevant
law and facts.325 The result provides process in the shadow of
Boumediene.326
The Real Meaning of Zadvydas v. Davis, 2001 SUP. CT. REV. 47, 5354 (describing the devel-
opment of the Courts doctrine holding Congresss power to exclude aliens as plenary).
Yet even in the Courts rulings addressing nonadmitted noncitizens, the Court permitted
review (as in Eisentrager) of whether the detention was authorized. Knauff, 338 U.S. at
54247; see Boumediene, 553 U.S. at 764 ([Q]uestions of extraterritoriality turn on objective
factors and practical concerns, not formalism.); Marc D. Falkoff & Robert Knowles,
Bagram, Boumediene, and Limited Government, 59 DEPAUL L. REV. 851, 87987 (2010) (ar-
guing for a limited government interpretation of the rulings); Fallon, Jr. & Meltzer, supra
note 22, at 2097 (arguing that courts traditionally pursued a pragmatically adaptive R
approach).
320 Baher Azmy termed this a largely unlimited invitation to create a new common
law of habeas. Baher Azmy, Executive Detention, Boumediene, and the New Common Law of
Habeas, 95 IOWA L. REV. 445, 450 (2010).
321 Yin, supra note 199, at 414. R
322 Boumediene, 553 U.S. at 801 (Roberts, C.J., dissenting) (arguing that the decision
replaced statutes with a set of shapeless procedures to be defined by federal courts at
some future date).
323 Id. at 796 ([T]he other remaining questions are within the expertise and compe-
tence of the District Court to address in the first instance.).
324 See generally BENJAMIN WITTES ET AL., BROOKINGS INST., THE EMERGING LAW OF DE-
TENTION: THE GUANTANAMO HABEAS CASES AS LAWMAKING 13 (2010) (describing the lower
courts initial work in carrying out the task delegated to them); Nathaniel H. Nesbitt, Note,
Meeting Boumedienes Challenge: The Emergence of an Effective Habeas Jurisprudence and Obsoles-
cence of New Detention Legislation, 95 MINN. L. REV. 244, 247 (2010) (arguing that the lower
courts habeas litigation should be allowed to proceed and develop, and that Congress
should not legislatively intervene).
325 Al-Bihani v. Obama, 590 F.3d 866, 880 (D.C. Cir. 2010) (quoting Boumediene, 553
U.S. at 787).
326 Id. at 877.
If due process is to influence habeas, one can imagine opening

the door either too broadly or too narrowly. The D.C. Circuit main-
tains that no due process or other constitutional rights run to detain-
ees at Guantanamo Bay, aside from Suspension Clause rights.327 One
could argue that if no due process right exists, then no habeas remedy
exists. That view is wrong and it is untenable after Boumediene. One
could try to define the absolute constitutional minimum that the Sus-
pension Clause guarantees. Boumediene, however, did not define a
constitutional floor. Finally, one could supplement the core habeas
process outlined in federal statutes to craft a process that is sensible
under the circumstancesan approach faithful to Hamdi and
Boumediene. However, lower courts have often attempted to hew, as
closely as possible, to some constitutional minimum rather than at-
tempt to carefully give content to the Boumediene-outlined habeas
process.328
The Boumediene Court clarified that federal courts must remain
available to review questions of law and mixed questions of law and
fact raised in detention cases. The Boumediene Court left unresolved
the content of the law that governs petitioners detention and the
legal bounds of the governments detention authority.329 Since, the
D.C. Circuit has grappled with that complex question and subse-
quently interpreted the authority to detain as fairly broad, which in-
cludes the authority to detain all individuals who were part of al-
Qaeda.330 Following the Hamdi plurality, the adopted standard asks
whether a detention is authorized by the Authorization for Use of Mil-
itary Force (AUMF), which Congress enacted just after September 11,
2001.331 I do not address whether that detention standard is appropri-
327 See Rasul v. Myers, 563 F.3d 527, 529 (D.C. Cir. 2009).
328 See Huq, supra note 236, at 421, 428 (noting that [t]he black-letter law of deten- R
tion, and the implementation of that law by the government, is no clearer, no more stable,
and no more coherent than it was before Boumediene, but [d]etention policy thus largely
unspools in the shadow of the Suspension Clause).
330 See, e.g., Awad v. Obama, 608 F.3d 1, 1112 (D.C. Cir. 2010) (Once Awad was part
of al Qaeda by joining the al Qaeda fighters . . . the requirements of the AUMF were
satisfied. (internal quotation marks omitted)); Al-Bihani, 590 F.3d at 87273 (reasoning
that the scope of the governments detention authority includes those who are part of
forces associated with Al Qaeda or the Taliban or those who purposefully and materially
support such forces).
331 Pub. L. No. 107-40, 115 Stat. 224 (2001) (authorizing all necessary and appropri-
ate force against those nations, organizations, or persons he determines planned, author-
ized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons); see Military Commissions Act of 2009, Pub. L.
No. 111-84, 948a(7), 948b(a), 948c, 123 Stat. 2574, 257576 (defining unprivileged
enemy belligerent to include a person who was a part of al Qaeda); Military Commis-
sions Act of 2006, Pub. L. No. 109-366, 948a(1), 120 Stat. 2600, 2601 (defining unlawful
enemy combatant to include a person who is part of the Taliban, al Qaeda, or associated
ate, a much-debated question.332 Federal legislation has now adopted

an AUMF (and law of war) standard in the National Defense Authori-
zation Act for Fiscal Year 2012.333
A crucial step toward elaborating the habeas process outlined in
Boumediene would be to apply the law to the facts and develop factual
questions. Indeed, the district court on remand ordered the release
of Lakhdar Boumediene and the four others, finding that the govern-
ment lacked factual support for its contentions.334 The inquiry is a
traditional one, based not on due process rights of detainees but on
whether the detainees fall within the legal category of people who may
lawfully be detained. However, due process jurisprudence would cer-
tainly be relevant to elaborate that process, even if the ultimate ques-
tion is one of whether a detention is authorized. The Court left the
particulars of the process open in Boumediene, stating, for example, as
to the standard of proof, that [t]he extent of the showing required of
the Government in these cases is a matter to be determined.335 The
Court held that a detainee must have a meaningful opportunity to
access exculpatory evidence and contest facts and the possibility of
release. How would factual review proceed?
A. Burden of Proof and Immigration Habeas Analogies

After Boumediene, federal district Judge Thomas F. Hogan in the
District of Columbia developed a case management order (CMO) de-
signed to handle a set of consolidated Guantanamo petitions; other
district court judges have tended to follow the order.336 In its first
forces); Hamdi v. Rumsfeld, 542 U.S. 507, 517 (2004) (plurality opinion) (Congress has
in fact authorized Hamdis detention, through the AUMF.); Al-Bihani, 590 F.3d at 87273.
332 See Bradley & Goldsmith, supra note 37, at 2131 (approving of the Hamdi pluralitys R
conclusion that the AUMF provides an independent source of authority for establishing
military commissions); Huq, supra note 236, at 416 (If ongoing detentions can be de- R
fended by a detention power that is redefined by statute four years into the detention,
there is little to prevent an amendment of the law so as to justify post hoc propter hoc
detentions that otherwise would be illegal.). Robert Chesney has argued that in practice,
questions of the scope of authorization have largely not come up, but rather cases have
turned on the sufficiency of the governments evidence. See Robert M. Chesney, Who May
Be Held? Military Detention Through the Habeas Lens, 52 B.C. L. REV. 769, 77273 (2011).
333 See National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81,
1021, 125 Stat. 1298, 1562 (2011) (affirming the position that the AUMF authorizes the
government to detain a person who was a part of or substantially supported al-Qaeda, the
Taliban, or associated forces).
334 Boumediene v. Bush, 579 F. Supp. 2d 191, 19798 (D.D.C. 2008) ([B]ecause the
Government has failed to establish . . . that Messrs. Boumediene, Nechla, Boudella, Ait
Idir, and Lahmar are enemy combatants, the Court must, and will, grant their petitions
and order their release.).
336 See In re Guantanamo Bay Detainee Litig., No. 08-0442 (TFH), 2008 WL 4858241, at
*14 (D.D.C. Nov. 6, 2008) (case management order). The CMO provides that district
court judges may alter the framework based on the particular facts and circumstances of
[the] individual cases. Id. at *1 n.1; see, e.g., Mohammed v. Obama, 704 F. Supp. 2d 1, 3
sentence, the CMO cites to Hamdi and Boumediene.337 The CMO cru-
cially placed upon the Government the burden of establishing, by a
preponderance of the evidence, the lawfulness of the petitioners de-
tention,338 though the government could also benefit from a rebut-
table presumption of accuracy and authenticity if there were a
showing of great need in a case.339 When detainees challenged the
CMO as inadequate, the D.C. Circuit approved the procedures, rea-
soning backward from Hamdis due process analysis rather than rea-
soning forward from Boumediene.340 The Al-Bihani v. Obama panel
reasoned that the Hamdi plurality described as constitutionally ade-
quateeven for the detention of U.S. citizensa burden-shifting
scheme in which the government need only present credible evi-
dence that the habeas petitioner meets the enemy-combatant criteria
before the onus could shift to the petitioner to rebut that evi-
dence.341 The D.C. Circuit concluded that such a process mirrors a
preponderance standard like that in the CMO.342
The choice of standard of proof goes to the heart of the habeas
process developed in Boumediene. Recall that the CSRT process, which
the Boumediene Court found lacking, used a preponderance-of-the-evi-
dence standard, while the Hamdi plurality rejected a some-evidence
standard.343 The D.C. Circuit did not reach the question of what pro-
cess the Suspension Clause or the Due Process Clause mandated and
suggested that even a some evidence, reasonable suspicion, or proba-
ble cause standard of proof could constitutionally suffice.344 A subse-
quent D.C. Circuit panel in Al-Adahi assume[d] arguendo that the
government must meet a preponderance-of-the-evidence standard.345
The panel urged the government to pursue a some-evidence stan-
dard, citing to immigration removal decisions prior to the 1952 Immi-
gration and Nationality Act.346 Chief Justice Roberts cited similar
(D.D.C. 2009) (This Court adopted, in large part, the provisions of [the CMO], while
modifying it somewhat . . . .).
337 Guantanamo Bay Detainee Litig., 2008 WL 4858241, at *1 (case management order).
338 Bensayah v. Obama, 610 F.3d 718, 721 (D.C. Cir. 2010).
341 Id. (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 53334 (2004) (plurality opinion)).
342 Id. at 878 & n.4.
343 Boumediene v. Bush, 553 U.S. 723, 788 (2008); Hamdi, 542 U.S. at 537.
344 Al-Bihani, 590 F.3d at 878 n.4. Similarly, other courts often rely on the Courts
Hamdi language describing a burden-shifting framework. See, e.g., Sulayman v. Obama, 729
F. Supp. 2d 26, 34 (D.D.C. 2010) (citing Hamdi, 542 U.S. at 534).
345 Al-Adahi v. Obama, 613 F.3d 1102, 110405 (D.C. Cir. 2010). The panel chiefly
relied upon INS v. St. Cyr, 533 U.S. 289, 306 (2001), and Ekiu v. United States, 142 U.S. 651,
659 (1892).
346 Al-Adahi, 613 F.3d at 110405; see St. Cyr, 533 U.S. at 306 (In [pre-1952 deporta-
tion] cases, other than the question whether there was some evidence to support the or-
der, the courts generally did not review factual determinations made by the Executive.
(footnote omitted) (citing Ekiu, 142 U.S. at 659)). See generally Gerald L. Neuman, The
cases in his Boumediene dissenta passage the D.C. Circuit mim-

ickedand noted that factual review is traditionally more limited in
some contexts than in others, depending on the status of the detainee
and the rights he may assert.347
Citing to immigration habeas rulings was an ironic choice, as dis-
cussed, since those rulings particularly highlight the availability of
habeas corpus despite a lack of due process.348 Indeed, the argument
for a some-evidence standard confuses due process with habeas
corpus. The some-evidence standard arises from the earliest procedu-
ral due process rulings, predating sufficiency-of-the-evidence review
under the Administrative Procedure Act that later became the model
for judicial review of immigration decisions.349 The some-evidence
standard has few vestiges left. A some-evidence standard is still used in
challenges in extradition proceedings,350 a context in which treaty ob-
ligations and the fact that criminal process will take place abroad may
explain the degree of deference.351 A second place where a some-
evidence standard may still persist is in challenges to expedited re-
moval; however in that context, full habeas review remains as to status
questions.352
The some-evidence standard is an outlier in immigration habeas
and judicial review. Somewhat more searching substantial-evidence
or sufficiency-of-the-evidence review is used by courts of appeals when
considering petitions for review of removal and asylum decisions.353
Constitutional Requirement of Some Evidence, 25 SAN DIEGO L. REV. 631, 63135 (1988) (sur-
veying the history, nature, justifications, and applications of the some-evidence standard).
349 See 5 U.S.C. 706(2)(E) (2006) (providing for substantial evidence test for on the
record administrative adjudication); Neuman, supra note 346, at 64346, 73132. Simi- R
larly, in postconviction law, some-evidence review has been replaced by sufficiency-of-the-
evidence review under the standard in Jackson v. Virginia, 443 U.S. 307 (1979). See
Neuman, supra note 346, at 656. Such some-evidence review is distinct from Mathews re- R
view, since it relates to review of fact-finding and not procedure. Id. at 69798.
350 See Brauch v. Raiche, 618 F.2d 843, 854 (1st Cir. 1980) (Our review . . . is limited to
determining whether in fact there was any evidence providing . . . a reasonable ground
to believe the accused guilty. (quoting Fernandez v. Phillips, 268 U.S. 311, 312 (1925)));
Neuman, supra note 346, at 736. R
351 See Fernandez, 268 U.S. at 312 (noting, in the context of an extradition treaty with
Mexico, that every technical detail need not be proved beyond a reasonable doubt and
that [f]orm is not to be insisted upon beyond the requirements of safety and justice).
352 The Immigration and Nationality Act preserves habeas review of status-related
questions in expedited removal proceedings. 8 U.S.C. 1252(e)(2) (2006); see Neuman,
supra note 30, at 577. R
353 See 8 U.S.C. 1252(b)(4)(B) ([A]dministrative findings of fact [in specified con-
texts] are conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary . . . .); id. 1252(b)(4)(D) (judicial review of asylum). The Immigration and
Nationality Act, amended by the 2005 REAL ID Act, bars habeas review of an order of
removal of criminal aliens, but permits petitions for review to be filed in a court of appeals
regarding constitutional claims or questions of law. See id. 1252(a)(2)(A)(B), (D).
Moreover, federal courts of appeals have preserved their independent

ability to assure adequate factual support for a detention by occasion-
ally remanding cases to the immigration agency for additional fact-
finding.354 As developed in Part IV, still broader de novo review exists
over factual questions related to status, such as whether the person is a
U.S. citizen.355 Habeas review also remains unaltered for immigration
challenges related to length of detention, which share similarities to
challenges to indefinite military detention.356 The Court in Zadvydas
v. Davis insisted on careful judicial review of noncitizens indefinitely
detained pending removal, even where statutes already provided pro-
cedures requiring periodic evaluations of detentions, noting that [a]
statute permitting indefinite detention of an alien would raise a seri-
ous constitutional problem.357
This judicial review exists despite the fact that generally in the
immigration context, underlying power to define who may be admit-
ted or removed falls within a very broad congressional plenary
power, and as a result, the substantive criteria for entry to or re-
moval from the United States became immunized from judicial re-
view.358 The limited contexts in which some-evidence review is still
used are a poor analogy when considering the detention of enemy
aliens for the duration of hostilities that may last a generation or
more.359 Nor are those contexts even representative of how immigra-
tion law handles judicial review of detention.
Moreover, distinctions between questions of law, mixed questions
of law and fact, and factual questions are notoriously blurry. In immi-
gration cases, courts have sometimes generously interpreted de novo
review of legal and constitutional questions to include mixed and
heavily factual questions.360 Still, other federal courts do not take that
354 See, e.g., Rafaelano v. Wilson, 471 F.3d 1091, 1098 (9th Cir. 2006); Hiroshi
Motomura, Immigration Law and Federal Court Jurisdiction Through the Lens of Habeas Corpus,
91 CORNELL L. REV. 459, 48182 (2006).
355 See 8 U.S.C. 1252(b)(5)(B).
356 The relevant statutes do not explicitly exempt detention-related habeas challenges;
rather, the statutory provisions limiting judicial review refer only to removal orders. See 8
U.S.C. 1252(b)(9); Gerald L. Neuman, On the Adequacy of Direct Review After the Real ID Act
of 2005, 51 N.Y.L. SCH. L. REV. 133, 138, 141 (20062007). The legislative history stated as
much. H.R. REP. NO. 109-72, at 17576 (2005) (Conf. Rep.) (stating section 106 of the
Immigration and Nationality Act would not preclude habeas review over challenges to
detention that are independent of challenges to removal orders).
357 533 U.S. 678, 687, 690, 699702 (2001); see 8 U.S.C. 1231(a)(6).
358 Gerald L. Neuman, Discretionary Deportation, 20 GEO. IMMIGR. L.J. 611, 618 (2006).
360 See, e.g., Ramadan v. Gonzales, 479 F.3d 646, 654 (9th Cir. 2007) (per curiam)
([T]he phrase questions of law as it is used in . . . the Real ID Act includes review of the
application of statutes and regulations to undisputed historical facts. (footnote omitted));
Xiao Ji Chen v. U.S. Dept of Justice, 471 F.3d 315, 329 (2d Cir. 2006) (rejecting a strict
rule, but explaining that [t]he court would need to determine, regardless of the rhetoric
employed in the petition, whether it merely quarrels over the correctness of the factual
approach, restricting review largely to pure questions of law.361

Questions remain about whether such an interpretation of the 2005
REAL ID Act, which consolidated and altered judicial review of re-
moval and other immigration decisions, violates the Suspension
Clause by unduly constraining federal courts.
A focus on habeas process suggests a reason for why the some-
evidence standard is marginalized in immigration lawand why judi-
cial review is at its height in the detention context. The habeas stat-
utes have long allowed, just as at common law, a detainee to rebut the
governments allegations, including by introducing new factual evi-
dence.362 While habeas process does not specify a standard of proof,
it fundamentally permits a meaningful challenge to the legality of a
detention. A some-evidence standard does not permit a meaningful
assessment of the legality of a detention; it would permit a detention
to stand regardless of the evidence the detainee presents, perhaps re-
stricting relief to only the extreme cases in which the governments
claims are themselves highly implausible on their face. For that rea-
son, the Hamdi plurality rejected the governments proposed some-
evidence standard.363 Similarly, the Boumediene Court emphasized
that habeas corpus must include some authority to assess the suffi-
ciency of the Governments evidence against the detainee.364 After
all, even postconviction habeas considers some new evidencejudges
may conduct hearings where a petitioner failed to develop facts in
state court.365
A preponderance standard is used in habeas, typically postconvic-
tion and after a criminal trial. In that context, a sufficiency-of-the-
evidence standard is the constitutional standard for evaluating
whether a jury had sufficient evidence to find guilt under the more
findings or justification for the discretionary choices, in which case the court would lack
jurisdiction, or whether it instead raises a constitutional claim or question of law); see
also THOMAS ALEXANDER ALEINIKOFF ET AL., IMMIGRATION AND CITIZENSHIP: PROCESS AND
POLICY 1296 (7th ed. 2012) (Those courts that are inclined to preserve as much review as
possible tend to find ways to subdivide the questions presented and locate a separately
identifiable question of law, or possibly a due process issue. Other courts are more resis-
tant to such arguments by the petitioner.).
361 See Viracacha v. Mukasey, 518 F.3d 511, 51516 (7th Cir. 2008), cert. denied, 555 U.S.
969 (2008) (contending that [b]ecause no administrative case can be decided without
applying some law to some facts, the Ninth Circuit approach misread the statute, and only
pure questions of law should be examined).
362 28 U.S.C. 2243 (2006). In response, the petitioner may deny any of the facts set
forth in the return or allege any other material facts. Id. Then [t]he court shall summa-
rily hear and determine the facts, and dispose of the matter as law and justice require. Id.
363 Hamdi v. Rumsfeld, 542 U.S. 507, 537 (2004) (plurality opinion) (Because we
conclude that due process demands some system for a citizen-detainee to refute his classifi-
cation, the proposed some evidence standard is inadequate.).
365 See 28 U.S.C. 2254(e)(2); Williams v. Taylor, 529 U.S. 420, 42930 (2000).
demanding beyond-a-reasonable-doubt standard at trial.366 The Al-

Adahi panel noted that the habeas standard may differ depending on
whether a detention is based on an arrest, selective services decision,
immigration detention, or a court martial.367 Unsurprisingly, defer-
ential factual review might follow a military trial.368
Habeas process may be sensitive to prior process, but only where
there was judicial process and where federal judges retain an adequate
and effective ability to exercise their independent role in examining
the authorization for the detention. As the Court developed in
Boumediene, the government faces a higher burden when attempting
to justify an indefinite detention.369 In Al-Bihani, the D.C. Circuit
claimed that traditional habeas review did not entail review of factual
findings, which, as developed in Parts I and II, is incorrect as a matter
of historical practice, federal statutes, and Supreme Court law in the
detention context.370 With this sort of confused understanding of re-
view, it is no wonder that the D.C. Circuit adopted the wrong stan-
dard. As in civil detentions,371 a clear-and-convincing standard may
be appropriate.372 An even more demanding standard would still pro-
366 See Jackson v. Virginia, 443 U.S. 307, 321, 326 (1979).
367 See Al-Adahi v. Obama, 613 F.3d 1102, 110405 (D.C. Cir. 2010) (Although we
doubt, for the reasons stated above, that the Suspension Clause requires the use of the
preponderance standard, we will not decide the question in this case.).
368 Chief Justice Roberts cited three cases involving military trials and the some-evi-
dence standard when arguing that habeas may be traditionally more limited in some con-
texts than in others. Boumediene, 553 U.S. at 814 (Roberts, C.J., dissenting).
369 Id. at 78586 (contrasting a habeas petition after the most rigorous proceedings
imaginable, a full criminal trial, with the closed and accusatorial CSRTs, and concluding
that the latter situation justifies more searching scrutiny).
370 Al-Bihani v. Obama, 590 F.3d 866, 878 (D.C. Cir. 2010). The court cited to In re
Yamashita, 327 U.S. 1, 8 (1946), in which the petitioner received a full military commission
trial.
371 See Addington v. Texas, 441 U.S. 418, 433 (1979).
372 The D.C. Circuits approach has attracted criticism and lacks strong defenders. See
Azmy, supra note 320, at 52122 ([I]t makes no more sense to ask if there was sufficient R
evidence in the prior CSRT recordso one-sided as it wasto support the militarys judg-
ment than it would to ask if there was sufficient evidence to support a criminal conviction
in a criminal trial in which the defendant was prohibited from calling witnesses or con-
fronting the Governments evidence.); Falkoff, supra note 95, at 101720 (arguing that R
civil commitment cases provide an appropriate standard of proof); see also Fallon, Jr. &
Meltzer, supra note 22, at 209293, 2104 (arguing that the preponderance standard is the R
minimum necessary for citizen-detainees although not untroubling); Walter E. Kuhn,
The Terrorist Detention Review Reform Act: Detention Policy and Political Reality, 35 SETON HALL
LEGIS. J. 221, 242 (2011) (calling it politically impossible to adopt a standard lower than
preponderance); Matthew C. Waxman, Detention as Targeting: Standards of Certainty and De-
tention of Suspected Terrorists, 108 COLUM. L. REV. 1365, 141011 (2008) (proposing prepon-
derance standard for initial detention decisions, but substantially stricter review after
appropriate duration). In two cases, petitioners sought certiorari from the U.S. Supreme
Court arguing that a clear and convincing evidence standard of proof should be
adopted. Petition for Writ of Certiorari at 20, Al Odah v. United States, No. 10-439 (U.S.
filed Sept. 28, 2010); Petition for Writ of Certiorari at 28, Awad v. Obama, No. 10-736 (U.S.
filed Nov. 30, 2010). To date, the Court has not granted certiorari on this question. See
vide judges with a great deal of discretion on how they weigh the
evidence.373
B. Postconviction Analogies: Discovery and Fact-Finding

In several areas, judges draw on postconviction habeas rules re-
garding discovery and fact-finding. This practice is troublesome,
given that in the postconviction context, habeas rules presume that
fact-finding occurred at criminal trial, on appeal, or during the state
postconviction process. Indeed, as additional support for a prepon-
derance standard of proof, the D.C. Circuit noted in federal habeas
challenges to state convictions that the petitioner must rebut factual
findings by clear and convincing evidence.374 Yet that rule applies af-
ter a state criminal trial and any state posttrial fact-finding.
The district courts CMO provides a sensible procedure, mirror-
ing the statutory procedure under the habeas statute, 28 U.S.C.
2243, requiring that the government submit a return that stat[es]
the factual and legal bases for detaining that prisoner, who then
file[s] a traverse stating the relevant facts in support of his petition
and a rebuttal of the Governments legal justification for his deten-
tion.375 Perhaps modeled on Federal Rule of Civil Procedure Rule
26(a), the CMO permits automatic disclosure where if requested,
the government shall disclose to the petitioner: (1) any documents
or objects in its possession that are referenced in the factual return;
(2) all statements, in whatever form, made or adopted by the peti-
tioner that relate to the information contained in the factual return;
and (3) information about the circumstances in which such state-
ments of the petitioner were made or adopted.376
Odah v. United States, 611 F.3d 8 (D.C. Cir. 2010), cert. denied sub nom. Al Odah v. United
States, 131 S. Ct. 1812 (2011); Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010), cert. denied, 131
S. Ct. 1814 (2011).
373 See Nesbitt, supra note 324, at 26872 (describing variation between judges in apply- R
ing standards).
374 Al-Bihani, 590 F.3d at 878 (If it is constitutionally permissible to place that higher
burden on a citizen petitioner in a routine case, it follows a priori that placing a lower
burden on the government defending a wartime detentionwhere national security inter-
ests are at their zenith and the rights of the alien petitioner at their nadiris also
permissible.).
375 Bensayah v. Obama, 610 F.3d 718, 721 (D.C. Cir. 2010); see In re Guantanamo Bay
Detainee Litig., No. 08-0442 (TFH), 2008 WL 4858241, at *13 (D.D.C. Nov. 6, 2008) (case
management order).
376 Guantanamo Bay Detainee Litig., 2008 WL 4858241, at *2 (case management order);
Colin C. Pogge, Note, A Dissentious Debate: Shaping Habeas Procedures Post-Boumediene, 88
TEX. L. REV. 1073, 109091 (2010).
The CMO rules were later revised to refer solely to evidence relied
upon to justify detention, not to all evidence relied upon in the
return.377
Further discovery beyond those categories is provided by leave of
the Court for good cause shown.378 The CMO quotes verbatim the
discovery standard in federal habeas corpus cases, but adds that such
requests must (1) be narrowly tailored, (2) specify the discovery
sought, (3) explain why the request is likely to produce evidence
that demonstrates that the petitioners detention is unlawful, and (4)
explain why the request is not unfairly disrupting or unduly burden-
ing the government.379 The CMO requirements appear adapted
from the Federal Rules of Civil Procedure.380 Detainees may face dif-
ficulties in making itemized requests if they cannot know what the
government possesses. Automatic disclosures are better suited to the
habeas process.
As discussed, Boumediene emphasized that traditionally a detainee
can supplement the record and introduce exculpatory evidence in re-
sponse to the governments return.381 The CMO required the govern-
ment to produce all reasonably available evidence in its possession
that tends materially to undermine the information presented to sup-
port the governments justification for detaining the petitioner.382
The standard refers to information the government chooses to pre-
sent. It is not as broad as Brady requires at a criminal trial, since it
does not hold the government responsible for disclosing all material
exculpatory evidence.383 To be sure, the D.C. Circuit later clarified
that the government must supply information that has been strategi-
cally filtered out when preparing the return, even if the individual
doing the filtering works for a different agency than the Department
of Justice (DOJ).384 In contrast, another judge adopted a modified
*1 (D.D.C. Dec. 16, 2008) (order amending case management order).
379 Id.
380 See FED. R. CIV. P. 26(b)(c) (For good cause, the court may order discovery of any
matter relevant to the subject matter involved in the action. Relevant information need
not be admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.).
382 Guantanamo Bay Detainee Litig., 2008 WL 4858241, at *1 (case management order)
(citing Boumediene v. Bush, 553 U.S. 723, 786 (2008)). One judge modified the standard
to state that the government must supply exculpatory evidence contained in the material
reviewed in developing the return for the petitioner, and in preparation for the hearing
for the petitioner. Al Shurfa v. Bush, 588 F. Supp. 2d 12, 14 (D.D.C. 2008).
383 See Brady v. Maryland, 373 U.S. 83, 87 (1963).
384 Bensayah v. Obama, 610 F.3d 718, 724 (D.C. Cir. 2010). Similarly, the revised
CMO notes the Government must supply evidence contained in any information reviewed
by attorneys preparing factual returns for all detainees. See In re Guantanamo Bay De-
CMO ordering production of exculpatory evidence that the Govern-

ment can obtain through reasonable diligence.385 Interestingly, one
judge required DOJ lawyers familiar with the Brady standard to search
for exculpatory evidence, not Department of Defense lawyers.386 Fed-
eral judges have ordered discovery over government objection in de-
tainee cases.387
On balance, the D.C. Circuit appropriately interpreted language
in Boumediene highlighting the importance of access to the govern-
ments evidence. Yet, unlike in the criminal procedure context,
where the Brady duty exists regardless of whether the detainee re-
quests evidence, courts in habeas proceedings require itemized re-
quests, although they carve out some exceptions for evidence
presumptively subject to disclosure. In addition, judges focus on evi-
dence the government relies upon, implying that the government may
determine whether evidence is material. Any other requests must be
specific, narrow, and not unduly burdensome, and a detainee must
show that requested evidence is specific and exculpatory on its
face,388 which is unrealistic in the context. While district judges cite
to Brady, they do not apply the Brady due process standard.389 And for
habeas cases, the remedy for a violation is not a new criminal trial, as
Brady provides.390 In several decisions where judges found that the
government failed to turn over exculpatory evidence, the result was
not a new trial, since trials are not part of the habeas context. Instead,
uncovering violations might bring to light evidence undercutting the
case for detention.391
Perhaps a higher standard of proof would create stronger incen-
tives for the government to justify a detention with more complete
evidence, which would then make discovery more rigorous. Discovery
occurs, however, against a backdrop of secrecybut this is not neces-
sarily problematic. The Boumediene Court emphasized that federal
courts could and should accommodate to the greatest extent possi-
ble the interest in protecting sources and methods of intelligence
gathering.392 Thus, the CMO provides for review of classified infor-
tainee Litig., No. 08-0442 (TFH), 2008 WL 5245890, at *1 (D.D.C. Dec. 16, 2008) (order
amending case management order).
385 Al-Adahi v. Bush, 585 F. Supp. 2d 78, 7880 (D.D.C. 2008).
386 Batarfi v. Bush, 602 F. Supp. 2d 118, 11920 (D.D.C. 2009).
387 Zaid v. Bush, 596 F. Supp. 2d 11, 1213 (D.D.C. 2009).
388 Bin Attash v. Obama, 628 F. Supp. 2d 24, 31 (D.D.C. 2009).
389 See id.; Bismullah v. Gates, 503 F.3d 137, 140 (D.C. Cir. 2007) (addressing a claim
that the DTA requires broader discovery than Brady v. Maryland, 373 U.S. 83 (1963)).
390 See Brady, 373 U.S. at 8889.
391 See Parhat v. Gates, 532 F.3d 834, 845 (D.C. Cir. 2008) (noting that the CSRT was
not provided with exculpatory evidence on the same point, which emerged from a differ-
ent detainees CSRT).
mation by counsel or in camera.393 On the other hand, judges have

expressed frustration with government reliance on undocumented
sources, making it difficult to assess the reliability of intelligence
reports.394
In one final respect, the D.C. Circuit also relied, incorrectly in my
view, on procedures in the habeas statute when making an extreme
claim that there is no entitlement to an evidentiary hearing as of
right.395 In Al-Bihani, the D.C. Circuit found denial of an evidentiary
hearing appropriate by citing 28 U.S.C. 2254(e)(2), which limits
judges discretion to conduct hearings in postconviction cases.396 The
D.C. Circuit reasoned that the lower court did hear the facts of Al-
Bihanis case and provided ample opportunity in conference and in a
hearing for the parties to air concerns over evidence.397 28 U.S.C.
2254, which governs postconviction review of state convictions, was
not good support for the courts conclusion. The Supreme Court
cited to that statute in Boumediene to emphasize how judges conduct a
factual inquiry even in post-trial habeas cases where the prisoner al-
ready has had a full and fair opportunity to develop the factual predi-
cate of his claims.398 Regardless of the merits of Al-Bihanis claim, to
say that there is no entitlement to a hearing as of right is erroneous
after Boumediene if there has been no prior judicial hearing.
Proceeding by analogy has its perils. Courts conducting execu-
tive detention habeas review cannot simply rely on discovery standards
developed for postconviction or civil litigation because these stan-
dards draw from inapposite sources. To ensure meaningful review,
judges should presumptively conduct evidentiary hearings where
there has been no prior judicial fact-finding. Most importantly,
Boumediene calls into question the standard of proof that courts have
adopted. Although guidance for handling difficult fact-development
issues is unclear, Boumediene and longstanding executive detention de-
cisions suggest a broader and more flexible process.
C. Criminal Procedure Analogies

In fascinating ways, lower courts draw on constitutional criminal
procedure as a source for guidance, largely in ways compatible with
the goals of a habeas process. Courts import concepts devised to regu-
*23 (D.D.C. Nov. 6, 2008) (case management order).
394 See WITTES ET AL., supra note 324, at 4041 ([I]t would be unwise for the govern- R
ment to expect a court to admit or give weight to any statement in an intelligence report
when the source is entirely anonymous . . . .).
396 Id.
397 Id.
late presentation of evidence at criminal trials into a context without a

jury or a criminal charge. Yet due process protections developed in
criminal cases may suggest fair and accurate process that courts can-
not justly deny to any person in custody. Judges generally find ways,
however, to avoid indicating to what degree they rely on criminal pro-
cedure analogies.399
1. Hearsay
Take the issue of hearsay evidence, for example. The D.C. Cir-
cuit has called it always admissible, but with a catch.400 Al-Bihani
argued that the lower court relied mostly upon government reports
of his interrogation answers, which, he argued, were hearsay im-
properly admitted absent an examination of reliability and neces-
sity.401 The D.C. Circuit noted that the Sixth Amendment
Confrontation Clause applies only in trials.402 Since a habeas pro-
ceeding does not involve a trial, but rather a judge who must weigh
the reliability of the evidence, the Federal Rules of Evidence apply
instead.403
With no trial, there is no formal occasion to consider admissibil-
ity. The D.C. Circuit noted: In Hamdi, the Supreme Court said hear-
say may need to be accepted as the most reliable available evidence
as long as the petitioner is given the opportunity to rebut that evi-
dence.404 Nevertheless, the D.C. Circuit has said that absent other
evidence corroborating the sources, hearsay alone cannot reliably sup-
port a detention.405 Judges have also insisted, without recognizing a
formal confrontation right, that detainees lawyers have an opportu-
399 See, e.g., Al-Madhwani v. Obama, 642 F.3d 1071, 1077 (D.C. Cir. 2011) (noting that
the court need not rule on al-Madhwanis constitutional due process claim that the lower
court relied on evidence outside the record in violation of Garner v. Louisiana, 368 U.S. 157
(1961), because even if a violation occurred, such error would be harmless).
400 Al-Bihani, 590 F.3d at 879.
401 Id.
402 Id.
403 FED. R. EVID. 1101(e). For a discussion of the argument that hearsay should be
excluded in such proceedings unless falling into an applicable exception under the Fed-
eral Rules of Evidence, see Azmy, supra note 320, at 531. R
404 Al-Bihani, 590 F.3d at 879 (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 53334
(2004) (plurality opinion)); see also Al-Adahi v. Obama, 613 F.3d 1102, 1111 n.6 (D.C. Cir.
2010) (Al-Bihani also forecloses Al-Adahis argument that admitting hearsay violated his
Sixth Amendment right of confrontation.).
405 Parhat v. Gates, 532 F.3d 834, 84647 (D.C. Cir. 2008) (describing, in a nonhabeas
DTA case, how the principal evidence consisted of documents that do not say who re-
ported or said or suspected the statements at issue, [n]or do they provide any of the
underlying reporting upon which the assertions were made, nor any assessment of the
reliability of that reporting); see also WITTES ET AL., supra note 324, at 4150 (discussing R
corroboration requirements for evaluating the reliability of detainee statements obtained
during interrogations).
nity to examine key adverse evidence.406 Thus, although judges have

not imported constitutional tests, they properly place less value on
hearsay when assessing support for a detention.
2. Self-Incrimination
Other criminal procedure protections apply in a different sense.
Although the Fifth Amendment privilege against self-incrimination
does not apply absent a jury trial,407 federal judges have drawn no
inference[s] based on [a detainees] decision not to testify in [a]
case.408 Indeed, judges reviewing a record for the purpose of con-
ducting a habeas review operate using some of the same evidentiary
principles as they would at a trial. Applying an effective privilege
against self-incrimination is consistent with a habeas process in which
it is the governments burden to defend the detention and where the
detainee traditionally was not obligated to testify.
3. Voluntariness of Confessions
Confession statements produced using physical coercion have
fortunately largely disappeared from U.S. courtrooms since the Su-
preme Court ruled that the Due Process Clauses of the Fifth and Four-
teenth Amendments forbade such statements409 and as professional
police turned to use of psychological techniques during interroga-
tions.410 However, government use of harsh interrogation techniques
post-9/11 created difficult problems in relying on the resulting state-
ments to support indefinite detentions. Criminal procedure scholars
have criticized the Courts focus on voluntariness as the touchstone
for admissibility of confessions, arguing that the Court should rather
406 See, e.g., Sadkhan v. Obama, 608 F. Supp. 2d 33, 3642 (D.D.C. 2009) (granting
some discovery requests while denying other discovery requests that petitioner claimed the
government must comply with pursuant to the CMO disclosure requirements).
407 See U.S. CONST. amend. V (No person shall be . . . compelled in any criminal case
to be a witness against himself . . . .).
408 Al Rabiah v. United States, 658 F. Supp. 2d 11, 2021 (D.D.C. 2009); see also
Kandari v. United States, 744 F. Supp. 2d 11, 22 (D.D.C. 2010) (The Court has drawn no
inference based on Al Kandaris decision not to testify in this case.); Al Odah v. United
States, 648 F. Supp. 2d 1, 7 (D.D.C. 2009) (The Court has drawn no inference based on Al
Odahs decision not to testify or submit a declaration in this case.); Awad v. Obama, 646 F.
Supp. 2d 20, 24 (D.D.C. 2009) (No inference was drawn from Awads decision not to
testify or from his failure to sign or swear to his affidavit.).
409 See Brown v. Mississippi, 297 U.S. 278, 28687 (1936) (holding confessions ex-
tracted through torture inadmissible in state proceedings under the Fourteenth Amend-
ment); Bram v. United States, 168 U.S. 532, 542 (1897) (holding involuntary confessions
inadmissible in federal proceedings under the Fifth Amendment).
410 See Miranda v. Arizona, 384 U.S. 436, 455 (1966) (surveying police interrogation
techniques and concluding that [e]ven without employing brutality . . . the very fact of
custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness
of individuals).
assess whether a statement may be false or contaminated.411 Precisely

because of their different role when reviewing habeas petitions,
judges have developed a remarkable body of case law assessing the
reliability of detainee confessions, which uses criminal procedure only
by analogy.412
For example, in Al Rabiah v. United States, the petitioner argued
that interrogators tortured him and fed him facts to confess.413 The
court found substantial evidence in the record supporting Al
Rabiahs claims that he was told he could not return to Kuwait unless
he confessed:414 Interrogators told Al Rabiah the evidence they had
in their possession (whether it really existed or not), Al Rabiah would
request time to pray or otherwise ask for a break, and then he would
provide a full confession through an elaborate or incredible story.415
When these spoon-fed accounts designed to please interrogators
were inconsistent, the interrogators threatened Al Rabiah with rendi-
tion and imposed sleep deprivation.416 Al Rabiah, an ill forty-three-
year-old man with no prior military experience, confessed to taking
over all supply operations in Tora Bora, a six square mile mountain
complex.417 Ultimately, the court held that the confession was not
believable. The court noted that since the government had disavowed
all but the most inculpatory portions of its version of the facts in order
for the evidence in this case to even make sense, the confessions lacked
reliability and credibility.418 The government countered by arguing
that Al Rabiah had repeated his confessions at his CSRT, but the court
found that the effects of abuse and torture had not dissipated by that
time, citing to Fifth Amendment and Due Process decisions concern-
ing voluntariness of a confession under the totality of the circum-
stances.419 However, those references were by way of analogy only.
The court concluded, by a preponderance of the evidence, that the
411 See Brandon L. Garrett, The Substance of False Confessions, 62 STAN. L. REV. 1051,
110913 (2010).
412 Al-Qurashi v. Obama, 733 F. Supp. 2d 69, 78 n.14 (D.D.C. 2010) (It is also well
established that in criminal proceedings, statements of the accused that are extracted by
threats or violence violate the Due Process Clause. (quoting United States v. Karake, 443
F. Supp. 2d 8, 51 (D.D.C. 2006)) (internal quotation marks omitted)); Bostan v. Obama,
674 F. Supp. 2d 9, 30 (D.D.C. 2009) (discussing why coerced evidence might be less relia-
ble, but refusing, where the Government has not produced a witness or supported the
reliability of alleged statements, to conduct a virtual trial over the efficacy of torture it-
selfa prospect . . . both distasteful and distracting).
413 Al Rabiah, 658 F. Supp. 2d at 3233.
414 Id. at 38.
415 Id. at 39.
416 Id. at 27, 39 (noting the threats and Al Rabiahs placement in the frequent flier
program, which prevented a detainee from resting due to frequent cell transfers).
417 Id. at 34.
418 Id.
419 Id. at 36 ([T]he Court must consider the totality of the circumstances in order to
determine whether there exists evidence from which to find that there was a clean break
statements were not reliable evidence supporting Al Rabiahs

detention.420
Similarly, in a case challenging evidence of Farhi Saeed Bin Mo-
hammeds confession, the judge concluded that Mohammeds state-
ments should not be credited because interrogators had tortured
him.421 The court described Mohammeds diary of torture, which in-
cluded accounts of brutal treatment and sleep deprivation by Moroc-
can captors.422 The court further detailed accounts of Mohammeds
captors feeding him information and asking him to repeat it, as well as
transfers to the Dark Prison in Kabul, the Bagram base in Afghani-
stan, and then finally Guantanamo Bay.423 The government did not
challenge or deny the accuracy of Binyam Moham[m]eds story of
brutal treatment.424 The court described how confessions procured
by torture are excluded under the Due Process Clause since they run
counter to fundamental principles of liberty and justice which lie at
the base of all our civil and political institutions.425 [C]oercive inter-
rogation techniques can cause confabulation and false memories,
and, despite Mohammeds detailed statements, his lengthy prior tor-
ture rendered them unreliable.426 Therefore, the court granted the
writ and ordered his release.427
On balance, courts have it right. They do not apply voluntariness
analysis in cases of detainees. Lower courts rule on motions to sup-
press confession evidence, not from a trial, but rather from an assess-
ment of whether evidence is reliable to support a determination that
the detainee was part of al-Qaeda.428 In at least one case, the gov-
ernment conceded that it coerced statements, which resulted in the
between the coercion and the later confessions. (quoting United States v. Karake, 443 F.
Supp. 2d 8, 8788 (D.D.C. 2006))).
420 Id.
421 Mohammed v. Obama, 704 F. Supp. 2d 1, 28 (D.D.C. 2009).
422 Id. at 2123.
423 Id.
424 Id. at 24.
425 Id. (quoting Brown v. Mississippi, 297 U.S. 278, 286 (1936)).
426 Id. at 27, 29 (quoting Shane OMara, Torturing the Brain: On the Folk Psychology and
Folk Neurobiology Motivating Enhanced and Coercive Interrogation Techniques, 13 TRENDS COG-
NITIVE SCI. 497, 498 (2009)).
427 Id. at 32. For a decision finding that the effects of torture had dissipated by the
time of confession, see Anam v. Obama, 696 F. Supp. 2d 1, 7, 10 (D.D.C. 2010).
428 See Sulayman v. Obama, 729 F. Supp. 2d 26, 33, 40 (D.D.C. 2010) (noting that
despite detainees lack of due process rights, statements resulting from coercion may
nonetheless be disregarded due to the likelihood that the [statements are] untrue (al-
teration in original) (quoting United States v. Karake, 443 F. Supp. 2d 8, 5051 (D.D.C.
2006))). One court emphasized an inapposite concern, finding that because a detainees
will was not overborne . . . , it [would] not disregard the statements [the detainee] made
during his interrogations at Bagram, Kandahar, or Guantanamo Bay. Abdah v. Obama,
709 F. Supp. 2d 25, 3637 (D.D.C. 2010).
court granting a habeas petition.429 Lower courts have ordered dis-

covery on whether coercion, abuse, or torture occurred to assess
confession statements.430 In the context of detainee confession state-
ments, or detainee statements inculpating others, judges draw on due
process law only by way of analogy, as part of the reliability inquiry
that they conduct.
4. Harmless Error
The D.C. Circuit imported another doctrine from appellate and
postconviction law: harmless error analysis. The court ruled, for ex-
ample, that denying Al-Bihanis discovery requests was harmless error
because discovery would not have changed the outcome of the
case.431 More recently, the D.C. Circuit cited a harmless beyond a
reasonable doubt standard, quoting the Chapman v. California stan-
dard governing state criminal appeals.432 Harmless error rules were
designed to avoid unnecessary trial do-overs. A Chapman harmless er-
ror standard requires the government to show error harmless beyond
a reasonable doubt, and, while not unduly onerous, the standard is
somewhat incongruous where there has been no jury conviction find-
ing guilt beyond a reasonable doubt. Moreover, unlike after a crimi-
nal trial in which a state cannot appeal an acquittal, the D.C. Circuit
has applied a harmless error rule for the government, finding harmful
errors that supported reversal of an order granting habeas corpus.433
The role of harmless error may need to be reconsidered; regardless, it
will necessarily play a reduced role in the context where there is no
trial and only a judge examines authorization for a detention.
Most recently, the D.C. Circuit in Latif v. Obama held, with no
precedent in habeas case law, that courts should afford the accuracy
of government reports, including intelligence, a presumption of reg-
ularity.434 The court cited to habeas decisions presuming state court
opinions were accurately transcribed.435 As Judge David S. Tatel ar-
gued in dissent, such a rule makes sense in the context of court or
business records, but has no place in a habeas inquiry, where the pur-
pose is to evaluate reliability of evidence produced under uncertain,
nontransparent, and nonroutine conditions.436 The result places an-
429 See Bacha v. Obama, No. 05-2385 (ESH), 2009 WL 2365846, at *1 (D.D.C. July 30,
2009) (order granting habeas petition); Bacha v. Obama, No. 05-2385 (ESH) (Jawad, ISN
900), 2009 WL 2149949, at *1 (D.D.C. July 17, 2009) (order granting motion to suppress).
430 See Rabbani v. Obama, 656 F. Supp. 2d 45, 54 (D.D.C. 2009).
432 Al-Madhwani v. Obama, 642 F.3d 1071, 1077 (D.C. Cir. 2011) (quoting Chapman v.
California, 386 U.S. 18, 2324 (1967)).
433 Hatim v. Gates, 632 F.3d 720, 721 (D.C. Cir. 2011).
434 666 F.3d 746, 749 (D.C. Cir. 2011), reissued, 677 F.3d 1175 (D.C. Cir. 2012).
435 See id. at 751 n.2.
436 Id. at 772.
other important thumb on the scale in favor of the governments evi-

dence in a manner that is inconsistent with Boumedienes Suspension
Clause mandate and the role of a habeas judge. Although intelli-
gence reports might be properly presumed accurate in many situa-
tions, adopting an across-the-board rule to this effect is unjustified
when some such reports may be of less convincing provenance.
The Supreme Court has not taken up challenges to these proce-
dures. In the meantime, the government has released much of the
Guantanamo population, with comparatively more of the remaining
detainees either difficult to transfer or [h]igh[ ]value.437 I have sug-
gested that several procedures, particularly the standard of proof,
raise Suspension Clause problems under Boumediene. To preserve the
independent ability of federal judges to review the authorization of
detention, courts must ensure that the entire set of procedures is ade-
quate and effective. Whether the Supreme Court will ultimately ad-
dress those questions is another matter.
D. Remedies and Jurisdiction

One additional feature of the adequacy and effectiveness of post-
Boumediene remedies deserves mention. The Boumediene Court criti-
cized the DTA as not clearly stating that the courts of appeals could
provide the remedy of release, leading the Court to the assumption
that congressional silence permits a constitutionally required rem-
edy and that a remedy of release is impliedly provided for.438 Yet,
even as to the remedy of release, the Boumediene decision did not
greatly change matters. Releases continue as before, occurring only
when the government arranges the release, even where a court has
granted the writ.439 In Kiyemba v. Obama, the D.C. Circuit ruled that
despite the finding that seventeen detained Uighur Muslims were
nonenemy combatants, the court could not immediately order their
release but must instead await government efforts to find countries
willing to resettle them.440 In a subsequent ruling, the court refused a
remedy, noting twelve accepted resettlement offers (and five rejected
offers) and referring to legislation barring expenditures to bring
Guantanamo detainees to the United States.441
437 See Andrei Scheinkman et al., The Guantanamo Docket: A History of the Detainee Popula-
tion, N.Y. TIMES, http://projects.nytimes.com/guantanamo?hp (last updated Sept. 11,
2012) (stating that 603 detainees at Guantanamo have been transferred, with 167
remaining).
439 See Huq, supra note 236, at 41011, 421. R
440 Kiyemba v. Obama (Kiyemba I), 555 F.3d 1022, 1029 (D.C. Cir. 2009).
441 Kiyemba v. Obama (Kiyemba II), 605 F.3d 1046, 105152 & n.6 (D.C. Cir. 2010)
(per curiam); see generally Caprice L. Roberts, Rights, Remedies, and Habeas CorpusThe
Uighurs, Legally Free While Actually Imprisoned, 24 GEO. IMMIGR. L.J. 1 (2009) (discussing the
detention of Uighurs at Guantanamo Bay). Three Uighur detainees remain at Guanta-
A careful examination of the Boumediene Courts multifactor test

defining the extraterritorial reach of the Suspension Clause is beyond
the scope of this Article. As noted, that standard incorporates due
process in a manner inconsistent with the traditional habeas focus on
whether there is jurisdiction over the jailer.442 The malleability of the
Courts jurisdictional test was all too clear when, in Al Maqaleh v. Gates,
the D.C. Circuit grappled with habeas petitions filed by persons cap-
tured outside Afghanistan but detained at the Bagram Air Force Base
in Afghanistan.443 The D.C. Circuit rejected any bright-line jurisdic-
tional rule, choosing instead to follow the factor-based Boumediene
analysis.444 In analyzing the first factor, the court acknowledged that
the process by which the detainees status had been determined was
even less protectiveand therefore less adequatethan CSRT pro-
cess at Guantanamo.445 The due process factor weighed heavily in
favor of extending the writ, but the court gave it little weight.446 In-
stead, the court found that the place of detention and practical factors
weighed conclusively against the writ, emphasizing that Bagram, in-
deed the entire nation of Afghanistan, remains a theater of war.447
With the number of detainees currently at Bagram greater than the
dwindling number of detainees at Guantanamo (though authority
over the base has been transferred to Afghan authorities),448 the rul-
ing undercuts Boumediene.449 Still, habeas influences the Executive,
which has resulted in modestly enhanced CSRT-type review proce-
dures at Bagram, perhaps in anticipation of a future Supreme Court
ruling on the detentions.450
namo Bay as of this writing. Jane Sutton, Two Uighur Detainees Sent to El Salvador, WASH.
POST, Apr. 20, 2012, at A9.
442 See supra Part II.D.
443 See 605 F.3d 84, 99 (D.C. Cir. 2010).
444 Id. at 95.
445 Id. at 96.
446 Id. at 97.
447 Id.
448 See Falkoff & Knowles, supra note 319, at 85154; Huq, supra note 236, at 40307; see R
also Rod Nordland, Detainees Are Handed over to Afghans, but Not out of Americans Reach, N.Y.
TIMES, May 31, 2012, at A4 (discussing the change of control over detainees in
Afghanistan).
449 The government may have strategically chosen places of detention, such as
Bagram, in an attempt to avoid the Boumediene analysis. Cf. Al Maqaleh, 605 F.3d at 9899
(dismissing such an argument but noting that the manipulation by the Executive in de-
liberately confining detainees in a theater of war was a potential additional factor in the
analysis).
450 See Michael J. Buxton, Note, No Habeas for You! Al Maqaleh v. Gates, the Bagram
Detainees, and the Global Insurgency, 60 AM. U. L. REV. 519, 52333 (2010).
IV
THE SUSPENSION CLAUSE AND JUDICIAL REVIEW
A. Habeas Process as an Organizing Principle
The Suspension Clause casts a broad shadow over the regulation
of all forms of detention. It has exerted direct and indirect influence
even in contexts where statutes largely supplant habeas corpus as the
primary vehicle for judicial review. The Executive, courts, and Con-
gress have long been concerned with avoiding Suspension Clause
problems, and the Supreme Courts own sometimes-carried-out warn-
ings that it will narrowly interpret efforts to restrict judicial review to
avoid potential Suspension Clause problems have, many years before
Boumediene, helped to structure judicial review of detention. I have
argued that the Suspension Clause explains why, as the Court put it in
INS v. St. Cyr, [a]t its historical core, the writ of habeas corpus has
served as a means of reviewing the legality of Executive detention, and
it is in that context that its protections have been strongest.451 Post-
Boumediene, judges may rely on the Suspension Clause more directly,
and not just as a principle of constitutional avoidance. Understanding
the Suspension Clause as affirmatively guaranteeing a right to habeas
process to independently examine the authorization for a detention
helps to explain habeas and constitutional doctrine across a range of
areas.
Why does habeas corpus sometimes provide access to process un-
available under the Due Process Clause, while sometimes due process
provides more process than habeas would? At its core, habeas corpus
provides judges with process in situations where the need for review of
legal and factual questions surrounding detention is most pressing.
This view of habeas process can be seen as related to the Courts long
line of decisions that guarantee a right of access to courts without
clarifying the source of that [s]ubstantive [r]ight.452 In Boumediene,
the Court grounded that right in the Suspension Clause.
This basis for the right makes some sense of the varied nature of
habeas review in which statutes and case law differ depending on the
type of detention. Judicial review does not vary categorically; for ex-
ample, immigration does not receive less review than postconviction
or military detention habeas. Instead, judicial review varies within
each category. This is the product of evolving executive detention
policies, varying postconviction practice, and changes over time in
federal statutes, some poorly conceived and some sensible. No one
actor provides coherence to habeas practice at any time, and some of
the statutes are notoriously Byzantine, poorly drafted, and illogical.
451 533 U.S. 289, 301 (2001).

452 See Vladeck, supra note 30, at 212526. R
Judges have long played, however, an important role in interpreting

the writ (and the underlying constitutional rights). Indeed, for some
time, the Supreme Courts interventions have reinforced the role
habeas plays, particularly in the executive detention context. In re-
sponse to the Courts habeas rulings, which generally avoid defining
the precise reach of the Suspension Clause, Congress has drafted stat-
utes to preserve judicial review of detentions in an effort to steer clear
of Suspension Clause problems, with mixed results.
As developed in Part I, despite changes over time, federal habeas
review of executive detentions has been broad and flexible since its
inception. The federal habeas statute, 28 U.S.C. 2241, has remained
largely unchanged. Courts provide more process where the Executive
detains a person, particularly indefinitely, and where legal or factual
questions remain unexplored.453 In important respects, immigration
habeas, postconviction habeas, and civil detention avoid Suspension
Clause problems by preserving traditional habeas process where there
has been no prior judicial review.454 I discuss each type of habeas in
turn.
Immigration habeas is terribly complex, with judicial review shift-
ing based on detailed statutes, case law, the type of noncitizen, and
the type of removal proceeding. Congress has haphazardly inter-
vened and created sometimes-arbitrary distinctions, with dramatic
consequences for noncitizens. However, a focus on habeas process
can shed some light on this thorny area. As noted, courts substantially
defer to the government in decisions regarding removal at the border,
where the substantive law falls within the congressional plenary power
and due process offers little protection.455 Yet, even in the immigra-
tion context, statutes have provided that habeas ensure judicial review
of key disputed questions of law and certain factual questions, in part
because Congress has sought to avoid Suspension Clause problems.456
An innocence of deportation claim, in which the detainee
claims that he or she is a U.S. citizen and immune to deportation, is
perhaps most prominent, even if such claims are infrequent. Immi-
gration statutes provide that such claims must receive de novo review
(now in petitions for review filed in courts of appeals).457 Of course,
453 See supra notes 35759, 369 and accompanying text. R

454 See infra Table 1.
455 See supra note 171 and accompanying text. Extradition is also a special case where R
deference to foreign policy and treaty obligations justify narrow judicial review. Fernandez
v. Phillips, 268 U.S. 311, 312 (1925).
457 8 U.S.C. 1252(b)(5)(B) (2006) (permitting a new hearing on the nationality
claim if the court of appeals concludes that there is a genuine issue of material fact).
Federal courts describe transfers as requiring a de novo hearing, akin to summary judg-
ment review. See, e.g., Ramirez-Garcia v. Holder, 358 F. Appx 873, 874 (9th Cir. 2009).
nondeportability of citizens is a substantive due process issue. In

1922, the Court held, in Ng Fung Ho v. White, that to deport a detainee
claiming to be a U.S. citizen obviously deprives him of liberty, and
that [j]urisdiction in the executive to order deportation exists only if
the person arrested is an alien. The claim of citizenship is thus a de-
nial of an essential jurisdictional fact.458 As the Court explained in
Agosto v. INS in 1978, In carving out this class of cases, Congress was
aware of our past decisions holding that the Constitution requires that
there be some provision for de novo judicial determination of claims to
American citizenship in deportation proceedings.459 Similar con-
cerns animated other standards associated with citizenship. In Woodby
v. INS, dealing with deportation, the Court held that clear, unequivo-
cal, and convincing evidence was the agency-level standard of proof
regarding citizenship claims; the Court held this without clearly citing
to the Due Process Clause as the authority for that requirement, but
by connecting it to the criminal case constitutional standard and cit-
ing to the great hardships deportations cause.460
The 2005 REAL ID Act centers judicial review in petitions of re-
view at the courts of appeals.461 In enacting the REAL ID Act, Con-
gress was aware of Supreme Court rulings, and it responded most
directly to the Courts St. Cyr ruling striking down prior restrictions on
habeas litigation by certain categories of noncitizens.462 Accordingly,
the Act preserved judicial review of questions of law and constitutional
questions (for which, as noted, courts may also reach mixed ques-
tions).463 The Act contained an exception to permit habeas review of
claims related to the status of the person in expedited removal pro-
ceedings, for which very little process is supplied.464 These may in-
clude claims that the person is not a noncitizen ordered removed at
all but actually a citizen, a lawful permanent resident, a refugee, a
person not ordered removed, or a person granted asylum.465 Perhaps
courts may interpret those exceptions broadly over time. After all, in
458 259 U.S. 276, 284 (1922). For an earlier decision taking an inconsistent approach,
see United States v. Ju Toy, 198 U.S. 253, 26164 (1905) (dismissing a petition alleging
citizenship that disclosed neither abuse of authority nor the existence of evidence not laid
before the Secretary).
459 436 U.S. 748, 753 (1978).
460 385 U.S. 276, 28586 (1966); see also 8 U.S.C. 1229a(c)(3)(A) (In the proceed-
ing the Service has the burden of establishing by clear and convincing evidence that, in the
case of an alien who has been admitted to the United States, the alien is deportable.); 8
C.F.R. 1240.8(c) (2012) ([T]he Service must first establish the alienage of the respon-
dent.). In contrast, the statute places the burden on a noncitizen contesting inadmissibil-
ity grounds. 8 U.S.C. 1229a(c)(2).
464 8 U.S.C. 1252(e)(2).
465 Id.
earlier immigration rulings like Heikkila v. Barber, the Court found

that despite the existence of statutes precluding judicial review to the
maximum extent possible under the Constitution, habeas corpus was
still available.466 The Heikkila Court did not explain why habeas
corpus was still availableit simply noted the nature of the writ and
the scope of inquiry on habeas corpus that differentiated habeas
corpus from purely statutory judicial reviewbut the Suspension
Clause provides a sensible explanation.467
This explanation makes still more sense when examining the
Courts Ludecke v. Watkins decision, affirming the district courts de-
nial of the habeas petition and upholding authority to deport under
the Alien Enemy Act of 1798.468 The Court noted that judges enter-
taining such habeas petitions could examine legal questions and juris-
dictional facts, that is, the construction and validity of the statute
and whether the person restrained is in fact an alien enemy.469
Again, the Court did not cite to the Suspension Clause, but it provides
the plausible source for that judicial authority.
The Suspension Clause may cast its shadow over other areas as
well. Lengthy or indefinite detention may be of even greater Suspen-
sion Clause concern. For example, in Zadvydas v. Davis the Court
held, to avoid reaching constitutional questions, that where a nonci-
tizen is in indefinite detention, its interpretation of specific statutes
required the government to make a detailed and sufficient showing
at the immigration hearing.470 Federal courts have carefully scruti-
nized detention pending removal even in cases involving mandatory
detentions of criminal aliens (which the Court approved in Demore v.
Kim).471 These rulings in habeas challenges to mandatory detention
do not cite to the Suspension Clause, and instead rely upon the Due
Process Clause. However, sometimes the relationship between the
Due Process and Suspension Clauses is overdetermined. Substantive
due process may overlap with the Suspension Clause in its concern for
broader judicial scrutiny where there is lengthy or indefinite
detention.
In contrast to those situations requiring elevated judicial review,
much of immigration decision making relates to discretionary agency
decisions. The REAL ID Act eliminates judicial review over such deci-
466 INS v. St. Cyr, 533 U.S. 289, 31112 (2001) (citing Heikkila v. Barber, 345 U.S. 229,
235 (1953)).
467 Heikkila, 345 U.S. at 23536.
468 335 U.S. 160, 16373 (1948).
469 Id.
470 533 U.S. 678, 699702 (2001).
471 See 538 U.S. 510, 52931 (2003); ALEINIKOFF ET AL., supra note 360, at 1257 (Some- R
what surprisingly, the lower courts have found significant constraints on lengthy detention
. . . despite the Supreme Courts apparent endorsement of that provision in Demore.).
sions as to factual challenges but preserves review of questions of law

and constitutional questions.472 Congress created an alternative to
habeas corpus, providing for limited substantial-evidence or suffi-
ciency-of-the-evidence review in the courts of appeals regarding fac-
tual questions and de novo review of questions of law and
constitutional claims.473 As noted, courts range in their interpretation
of what is a question of law. Tellingly, the Second Circuit Court of
Appeals, when explaining the need to flexibly interpret that language,
cited INS v. St. Cyr and the demands of the Suspension Clause: The
Conference Report makes clear that Congress, in enacting the REAL
ID Act, sought to avoid the constitutional concerns outlined by the
Supreme Court in St. Cyr, which stated that as a result of the Suspen-
sion Clause, some judicial intervention in deportation cases is unques-
tionably required by the Constitution . . . .474
The REAL ID Act not only eliminates judicial review of factual
questions regarding discretionary decisions, but it also eliminates judi-
cial review for criminal aliens, perhaps because they received process
when convicted of an enumerated crime at trial (or when pleading
guilty).475 As to criminal convicts, review remains over legal questions,
including the question of whether a court convicted the defendant of
one of the (excessively broad and ill-defined) array of crimes qualify-
ing as grounds for removal. Courts have expanded mixed-question
review of facts relevant to that legal question as well.476 The Court in
St. Cyr cited to the Suspension Clause when it narrowly construed stat-
utes stripping judicial review of detention.477
Extradition also provides an example of highly limited review of
noncitizen removal. In 1925, the Supreme Court set out a standard in
which the reviewing court asks whether the magistrate had jurisdic-
472 8 U.S.C. 1252(a)(2)(B), (D) (2006) (stating that no court has the authority to
review listed waivers and matters committed to official discretion, excepting asylum, and
preserving judicial review of constitutional claims and questions of law).
473 See id.; id. 1252(b)(4)(B).
474 Xiao Ji Chen v. U.S. Dept of Justice, 471 F.3d 315, 326 (2d Cir. 2006) (footnote
omitted) (quoting INS v. St. Cyr, 533 U.S. 289, 300 (2001)).
475 Noncitizens may also waive judicial review. See, e.g., 8 U.S.C. 1187(b)(2).
476 Judges (and the Executive) have increasingly reached further to examine facts, in-
cluding facts not part of the criminal record, to decide whether a court convicted a nonci-
tizen of a deportable offense. See Nijhawan v. Holder, 557 U.S. 29, 3637 (2009) (holding
that the question of loss to the victim calls for a circumstance-specific, not a categorical,
interpretation); Silva-Trevino, 24 I. & N. Dec. 687, 708 (Atty Gen. 2008) (adopting an
approach permitting the judge in an immigration case to consider any additional evi-
dence or factfinding to decide if the crime was one involving moral turpitude). See
generally Alina Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical
Analysis in Immigration Law, 86 N.Y.U. L. REV. 1669 (2011) (criticizing the disarray caused
by departures from the traditional categorical approach); Jeremiah J. Farrelly, Note, Deny-
ing Formalisms Apologists: Reforming Immigration Laws CIMT Analysis, 82 U. COLO. L. REV.
877 (2011) (same).
477 533 U.S. at 30405.
tion, whether the offence charged is within the treaty and, by a some-
what liberal extension, whether there was any evidence warranting the
finding that there was reasonable ground to believe the accused
guilty.478 Extradition is treaty based and involves diplomatic issues,
but there is another explanation for the traditionally limited judicial
review: although extradition may not involve much in the way of prior
judicial process, the process that does exist takes the form of a magis-
trate finding probable cause. Following the magistrates determina-
tion, however, there is the anticipation of future judicial process: the
individual will receive full criminal process in a foreign court. This
explains, perhaps, the very limited judicial review prior to
extradition.479
Summarizing the procedures in each area of habeas corpus dis-
cussed, Table 1 below illustrates the inverse relationship between
habeas corpus and due process. In key areas, the broadest habeas pro-
cess is provided where process lacked in prior proceedings, while
more deferential review occurs where there was more substantial prior
process, in part due to the influence of the Suspension Clause.
478 Fernandez v. Phillips, 268 U.S. 311, 312 (1925).

479 Habeas jurisdiction remains over petitions challenging the legality of the extradi-
tion proceedings and the Secretary of States compliance with domestic law, despite the
REAL ID Acts consolidation of many immigration challenges in the courts of appeals,
since such petitions do not challenge final orders of removal. Trinidad y Garcia v.
Thomas, 683 F.3d 952, 956 (9th Cir. 2012) (en banc) (per curiam).
TABLE 1: THE INVERSE SCOPE OF HABEAS CORPUS AND DUE PROCESS
Habeas Review of Due Process at Prior

Type of Review Full Habeas Process Prior Process Proceeding
Military Detention Broad review under Hamdi v. Rumsfeld, Possibly prior CSRT;
28 U.S.C. 2241 and 542 U.S. 507 (2004), Boumediene did not
Boumediene v. Bush, language on due address whether
553 U.S. 723 (2008). process standard for CSRTs comply with
review. due process.
Deferential review of Prior military com-
prior military commission trial (John-
mission trial. son v. Eisentrager,
339 U.S. 763
(1950)).
Postconviction Evidentiary hearings Deferential review of Prior criminal trial
and discovery where legal rulings, nonret- or waiver by guilty
new, undeveloped roactivity, and defer- plea; a final convic-
facts or new and ret- ence to prior trial, tion receives defer-
roactive legal rules appeal, or postcon- ence, but due pro-
(e.g., 28 U.S.C. viction fact-finding cess requires be-
2254(e)) are at is- (e.g., 28 U.S.C. yond-a-reasonable-
sue. 2254(b), (d), doubt proof at trial
(e)(1)). and an array of pro-
cedural protections.
Immigration Deten- De novo review of Substantial-evi- Plenary power per-
tion citizenship claims dence or sufficien- mits broad bases for
under 8 U.S.C. cy-of-the-evidence removal.
1252(b)(5)(B). nonhabeas review of At agency hearing,
Habeas review of sta- noncriminal removal clear-and-convincing-
tus for expedited re- and asylum evidence standard
moval under 8 (8 U.S.C. 1252(b) for deportation (8
U.S.C. 1252(e)(2). (4)(B)). U.S.C. 1229a(c)(3)
Some-evidence due (A); Woodby v. INS,
process review of ex- 385 U.S. 276,
tradition, removal of (1966)).
criminal aliens. Searching review of
length of detention
(Zadvydas v. Davis,
533 U.S. 678
(2001)).
As depicted above, where due process rulings or statutes already

provide for substantial prior process, habeas process may do less work
to supplement process provided, and statutes and case law may restrict
judicial review. Prior administrative process may receive compara-
tively more deference in situations in which there has been prior judi-
cial process (i.e., criminal aliens provisions) or where the detention
standard is not very fact sensitive; in contrast, key jurisdictional facts
and questions of status may receive de novo review despite prior ad-
ministrative process. Even in the enemy combatant context, review
may be more limited where the government conducted a full-fledged
military trial; as discussed, the Courts Boumediene decision distin-
guished Eisentrager for that reason.480

In contrast, in the postconviction setting, as developed in Part I,

habeas corpus has long required less demanding review. This is par-
ticularly so where criminal procedure offered due process at trial. Yet
even in postconviction review, as discussed next, new facts and evi-
dence of innocence alter judicial review. Complex constitutional and
statutory rules concerning evidentiary hearings, Brady disclosures of
exculpatory evidence, innocence and other gateway claims all facili-
tate access to new evidence and preserve some role for a federal judge
(although, in my view, not an adequate ability to review new evidence
of innocence).
One additional category of detention not included in Table 1 is
civil detention, such as commitment of the mentally ill, for which, as
noted, the Court requires clear and convincing evidence supporting
the detention at a trial-like adversary proceeding.481 Those substan-
tive due process standards relate to the initial detention. Given the
role substantive due process plays in such cases, habeas plays a limited
role. As the Court has noted, because the ongoing basis for a civil
commitment or the conditions of confinement may be revisited and
challenged in civil rights actions, such civil suits provide far more use-
ful tools for civil detainees than habeas challenges.482
Viewing habeas corpus as an institution reveals both an important
common structuredespite changing case law, practice, and statutes
over timeand certain inadequacies and potential constitutional
flaws in statutes in some areas. The full habeas process column of
Table 1 is particularly telling. While military detention, immigration
detention, and postconviction habeas involve review of different types
of detention following different process, statutes and case law preserve
full habeas process in some places when it is most needed. Habeas
retains its greatest force in contexts in which there has been less prior
process and where factual and legal issues have not received adequate
judicial review.
A substantive view of the Suspension Clause has implications for
understanding habeas corpus across its range of applications and for
answering unsettled questions surrounding habeas review. For exam-
ple, judicial interpretation of the REAL ID Act in immigration habeas
cases could hinge on whether the agency conducts adequate factual
review, or on whether the applicable statutes preserve sufficient judi-
481 Addington v. Texas, 441 U.S. 418, 433 (1979).

482 See Seling v. Young, 531 U.S. 250, 263 (2001) (noting the availability of appeals and
injunctive remedies and explaining that confinement is not a fixed event); Martin v.
Bartow, 628 F.3d 871, 877 (7th Cir. 2010) (explaining that a determination that a person is
a sexual offender is constantly and forever disputable as a matter of constitutional law).
cial review of mixed factual and legal questions.483 The foregoing

analysis suggests that where a statute is silent on review of mixed ques-
tions and factual questions, courts should maximize judicial review
where prior fact development is inadequate, and habeas corpus
should supply the standard.484 As discussed next, this view of the Sus-
pension Clause has implications for postconviction habeas, in which
scope of factual review is contested, particularly for claims of
innocence.
B. Three Hypotheticals
How much of a difference does it make whether judges examine
the authorization for a detention under a habeas corpus process or
whether they determine if procedures comport with due process? To
press the role of the distinction in Boumediene and Chief Justice Rob-
ertss concern that CSRT procedures supplied adequate process,485
suppose Congress legislates a set of enhanced CSRTs. Perhaps these
CSRTs include the D.C. Circuits adopted standards for habeas hear-
ings: discovery of potentially exculpatory evidence, a preponderance
standard of review, a right to retain counsel, and the ability to rebut
the governments case.486 A due process approach would simply ask
whether that set of procedures comports with the minimal Mathews
standards following the Hamdi analysis.487 Under the Suspension
Clause, a judge would question whether the scheme provided an ade-
quate and effective alternative to full habeas review by an Article III
judge.488 Even though these hypothetical procedures are more ro-
bust, they do not resemble the alternatives to habeas the Court has
previously approved, which streamlined, but maintained the
equivalent of, full habeas review with federal judges. Further, a pre-
liminary administrative procedure to screen detainees status does not
absolve federal judges of their independent obligation to review the
authorization for each detention. On the other hand, a statute could
require federal judges to defer, in some respects, to the record or
findings of an enhanced set of CSRTs.
483 Motomura, supra note 354, at 48691 (discussing the REAL ID Act and advocating R
a direct review model, arguing that the collateral review model is insufficient without a
prior formal process in which the facts are laid bare).
484 Aaron G. Leiderman, Note, Preserving the Constitutions Most Important Human Right:
Judicial Review of Mixed Questions Under the REAL ID Act, 106 COLUM. L. REV. 1367, 1368
(2006) (urging courts to defer to agency findings of historical facts, but to engage in de
novo review of . . . determinations that a given set of facts do or do not rise to the relevant
legal standard).
486 See supra Part III.
487 See supra Part II.A.1.
488 See supra Part II.B.2.
Take a second hypothetical: Imagine that in a future conflict the

military detains many tens of thousands of prisoners of war
(POWs).489 Each detainee receives the privileges of POW status, in-
cluding, if his or her status is unclear, military hearings under Article
5 of the Geneva Conventions. Such hearings may, however, be quite
rudimentary, involving a competent tribunal that has no required
procedures (implementing Army Regulations describe the U.S. proce-
dures).490 Suppose many thousands of POWs demand access to
habeas, claiming they were not combatants for an enemy state, but
were private mercenaries or noncombatants that the government
should release.491
One could imagine strong practical incentives for federal courts
to postpone resolution of such difficult questions, particularly if
thousands held as POWs raised such claims. A court might rely on
jurisdictional grounds to refuse to hear petitions, citing to practical
impediments, just as the D.C. Circuit did in Al Maqaleh.492 The
Boumediene Courts jurisdictional test left open that possibility for fu-
ture conventional or unconventional conflicts.
Now, assume the POWs are detained at a military base in the ter-
ritorial United States or at Guantanamo Bay. Boumediene would be
squarely on point. Military hearings may provide limited screening to
ascertain POW status, but they are not an adequate substitute for
habeas corpus. Judges considering habeas petitions would examine
the authorization for detention in each individual case. One could
easily imagine federal courts developing reasons to abstain. However,
a due process approach would make deference far simpler, although a
lengthy detention, perhaps after hostilities were over and without pro-
cess beyond the initial competent tribunal, might raise real due pro-
cess concerns. In contrast, the Suspension Clause approach would, at
489 For a discussion of advantages and disadvantages of treating al-Qaeda operatives as

combatants and affording them prisoner-of-war status, despite al-Qaedas lack of a state
or army, see David Glazier, Playing by the Rules: Combating Al Qaeda Within the Law of War,
51 WM. & MARY L. REV. 957, 100102 (2009).
490 See Geneva Convention Relative to the Treatment of Prisoners of War art. 5, Aug.
12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; U.S. DEPT OF THE ARMY, ARMY REGULATION 190-8,
ENEMY PRISONERS OF WAR, RETAINED PERSONNEL, CIVILIAN INTERNEES AND OTHER DETAINEES
(1997) [hereinafter ARMY REGULATION 190-8], available at http://www.apd.army.mil/pdf-
files/r190_8.pdf; see also Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of
Criminal and Military Detention Models, 60 STAN. L. REV. 1079, 1091 (2008) (describing past
and present U.S. procedures and comparing said procedures with several allied nations
procedures).
491 Army Regulation 190-8 provides that the tribunal may recommend such release of
an innocent civilian. See ARMY REGULATION 190-8, supra note 490, 1-6e(10). Perhaps R
few combatants would contest their status though, as the desire to obtain the benefits of
POW status ordinarily would encourage captured soldiers to concede their associational
status, not deny it. Chesney & Goldsmith, supra note 490, at 1089. R
a minimum, force judges to acknowledge that they were avoiding a

responsibility to examine whether individuals were in fact properly
held as POWs, perhaps in deference to military concerns.
Third, suppose Congress created a national security court with
Article III judges that used highly streamlined procedures (much like
the CSRTs) and provided detainees with advisers, but not lawyers, and
little access to discovery.493 In this hypothetical, the due process anal-
ysis would largely overlap with the habeas analysis. There might be
questions under Hamdi as to whether these procedures are minimally
adequate. There might also be questions as to whether the proce-
dures provide an adequate and effective substitute for habeas, since,
though an Article III judge sits on the case, it is unclear if this type of
judge would have the traditional authority to examine authorization
for the detention and provide relief. The Boumediene Court empha-
sized that deference can be appropriate to sufficient prior judicial
process; however the Court also emphasized that access to exculpatory
evidence was constitutionally required.494 The Court added that
military courts might be sufficient, but only if they had a sufficiently
adversarial structure that included providing counsel.495
Thus, judges examining habeas corpus and due process ask dif-
ferent questions and do not always provide the same answer. A judge
examining a due process claim asks whether general procedures are
adequate; a federal judge examining habeas process asks whether
there is an adequate opportunity to review the authorization of the
detention for each detainee. There may be reasons for judges to ab-
stain or defer to Congress and the Executive, but if judges squarely
face the question, the Suspension Clause requires that the judge re-
tain full power to meaningfully review the factual and legal authoriza-
tion for the detention.
C. Innocence and the Suspension Clause
Habeas process involves a sort of innocence claim. Detainees ar-

gue that the government illegally detained them or that factually they
are not the type of person the government can legally detain. I have
developed how judges conducting a habeas process, grounded in the
Suspension Clause, must be intimately concerned with factual error
493 Commentators have proposed that such courts be created. See generally Amos N.
Guiora, Creating a Domestic Terror Court, 48 WASHBURN L.J. 617 (2009) (exploring potential
processes and complications for such a court); Stuart Taylor, Jr., The Case for a National
Security Court, ATLANTIC, Feb. 2007, http://www.theatlantic.com/magazine/archive/2007/
02/the-case-for-a-national-security-court/305717/ (arguing in favor of these courts).
494 Boumediene v. Bush, 553 U.S. 723, 78182, 786 (2008).
495 Id. at 78687.
and not just review of questions of law. Such a view has important
implications for domestic habeas.496
Since its 1993 Herrera v. Collins497 decision, the Supreme Court
has failed to recognize, except for the sake of argument, that inno-
cence alone could be a basis for a constitutional entitlement to post-
conviction relief. The Herrera Court noted that such a claim would be
disruptive of our federal system and federal habeas courts sit to en-
sure that individuals are not imprisoned in violation of the Constitu-
tionnot to correct errors of fact.498 The Court assumed that any
such claim of innocence would require a truly persuasive show-
ing.499 Federal courts have yet to release a convict on the basis of a
hypothetical truly persuasive Herrera claim (and I have developed
how even innocent convicts, including those later exonerated by
DNA, tried and failed to assert such claims).500 The Court does, how-
ever, permit a showing of innocence to excuse procedural barriers
that would otherwise bar review of claims, and the Court has indicated
that this hypothetical innocence claim may be asserted in noncapital
cases.501
What Boumediene and executive detention jurisprudence highlight
is that habeas at its core is centrally preoccupied with examining facts
or questions of innocence. Justice Lewis Powell wrote, [H]istory
reveals no exact tie of the writ of habeas corpus to a constitutional
claim relating to innocence or guilt.502 That is incorrect. In deten-
tion cases, judges must examine innocence or guilt absent any consti-
tutional claim at all when performing the core of their habeas
function. As Gerald Neuman has suggested, following Boumediene, the
Courts failure to recognize a freestanding claim of innocence may
stand on weaker constitutional ground.503 A claim of innocence
could be grounded in the Due Process Clause, its natural founda-
tion,504 whether a court uses a Mathews balancing approach con-
cerned with risk of error, or a fundamental fairness approach under
which an innocent prisoner has a powerful and legitimate interest in
496 Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal
Justice, 84 N.Y.U. L. REV. 791, 837 (2009) (suggesting that the proposed cutback of habeas
may be unconstitutional if states fail to maintain robust postconviction review).
497 506 U.S. 390 (1993).
498 Id. at 40001.
499 Id. at 417.
500 Brandon L. Garrett, Claiming Innocence, 92 MINN. L. REV. 1629, 169192 (2008).
501 See Dist. Attorneys Office v. Osborne, 557 U.S. 52, 72 (2009); Schlup v. Delo, 513
U.S. 298, 321 (1995).
502 Schneckloth v. Bustamonte, 412 U.S. 218, 257 (1973) (Powell, J., concurring).
503 Neuman, supra note 30, at 56364 (noting that the Boumediene balancing method- R
ology could supply a new doctrinal foundation for a Herrera-type innocence claim).
504 Garrett, supra note 500, at 1704. R
obtaining his release from custody.505 Boumediene suggests that a

claim of innocence could be grounded in the Suspension Clause (per-
haps informing a due process claim, if a federal question claim could
not be premised directly on the Suspension Clause). If no prior court
adequately examined new evidence of innocence, perhaps courts
should mandate federal habeas review.506
Jurisprudence emerging from Boumediene, with its focus on fac-
tual reliability, may also indirectly influence constitutional criminal
procedure. Judges may use similar rules to assess hearsay or confes-
sion evidence in other contexts in which the reliability of such evi-
dence is important, perhaps including in posttrial cases raising claims
of innocence. As scholars and courts try to improve accuracy and reli-
ability of evidentiary rules, that case law may become salient.507
CONCLUSION
The Suspension Clause has long cast a shadow over the regula-
tion of detention. Now the Supreme Court has brought the Clause
out of the shadows, giving it substance. It does not merely describe
when the government may suspend the writ, nor does it solely reflect
an important principle of constitutional avoidance in interpreting
statutes that restrict judicial review of detention. Instead, the Clause
affirmatively offers a simple but powerful form of process to detainees.
Moreover, the Court emphasized a Suspension Clause concern with
both legal and factual error. This Article has explored this new un-
derstanding of the Suspension Clause in light of the changing and
unsettled relationship between two complex areas of law: due process
and habeas corpus. Both due process and habeas corpus are quite
general, amorphous, and capacious in their content.508 Despite ring-
505 Id. at 1705 (quoting Kuhlmann v. Wilson, 477 U.S. 436, 452 (1986)).
506 Currently, a federal court may grant an evidentiary hearing to develop facts a state
court failed to develop, but it may not necessarily rely on facts undeveloped in state pro-
ceedings when ruling on the merits. See 28 U.S.C. 2254(e)(2) (2006); Cullen v. Pinhol-
ster, 131 S. Ct. 1388, 1398 (2011) (holding that review under 2254(d)(1) is limited to the
record presented to the state court that adjudicated the claim on the merits); Williams v.
Taylor, 529 U.S. 420, 437 (2000) (noting that 28 U.S.C. 2254(e)(2) does not bar an
evidentiary hearing where a prisoner was unable to develop his claim in state court de-
spite diligent effort). The Court also suggested a claim of innocence could be pursued in
federal habeas discovery despite failure to recognize such a claim. Dist. Attorneys Office v.
Osborne, 557 U.S. 52, 7273 (2009).
507 See, e.g., BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSE-
CUTIONS GO WRONG 26574 (2011) (advocating for criminal procedure reforms to improve
accuracy); Richard A. Leo et al., Bringing Reliability Back in: False Confessions and Legal Safe-
guards in the Twenty-First Century, 2006 WIS. L. REV. 479, 486 (advocating reliability review of
confessions). See generally State v. Henderson, 27 A.3d 872 (N.J. 2011) (adopting social
science framework to regulate eyewitness evidence).
508 Carl Tobias, The Process Due Indefinitely Detained Citizens, 85 N.C. L. REV. 1687, 1720
(2007).
ing language uniting habeas and due process in a tradition dating

back to Magna Carta, habeas and due process cover importantly dif-
ferent terrain. The Suspension Clause supplies process in circum-
stances where the Due Process Clause does not apply, while due
process has varied applications outside areas covered by habeas
corpus. In executive detentions, however, the Suspension Clause
plays an outsized role.
Taken seriously, the Court in Hamdi and Boumediene forged a rela-
tionship between the Suspension Clause and the Due Process Clause.
Nelson Tebbe and Robert Tsai examined what circumstances justify
constitutional borrowing and noted concerns where there is a lack
of fit, a lack of transparency, and incomplete application from one
area of constitutional law to another.509 In Boumediene, the Court was
careful not to explicitly borrow due process standards. The Courts
caution was justified. While due process analysis focuses on adequacy
of procedures, habeas process provides the authority for judges to ex-
amine the factual and legal authorization for detention. Though
habeas process may be skeletal in its outlines, both at common law
and in modern federal statutes, it provides judges a powerful tool. In
significant ways, complex and sometimes poorly conceived distinc-
tions in statutes nevertheless respect core habeas process, in part due
to the judicial interventions. I have argued that Boumediene was no
innovation, but rather it followed the longstanding view that habeas is
at its most expansive concerning detention without a trial.
The Suspension Clause demands that habeas corpus remain in
full force where there was no adequate prior judicial process, particu-
larly in the context of indefinite detentions. This places the judiciary
in the uncomfortable position of reviewing broad congressional au-
thorizations for detentions and changing executive procedures in fac-
tually and legally contested detainee petitions. Thrust into that
difficult role, lower courts have often relied upon inapposite sources,
hewing to some vision of a bare constitutional minimum rather than
providing a meaningful habeas process. The D.C. Circuit approves a
standard of proof that is too lenient as defined, if not also in applica-
tion. Its approach unduly limits discovery and uses an odd harmless
error rule. In other respects, rulings have done a better job harmoniz-
ing evidentiary and criminal procedure rules with habeas process.
Careful application could avoid unfortunate rulings, with an excep-
tion: the decision not to extend habeas to Bagram was partially due to
Boumedienes misstep in adopting a multifactored jurisdictional test.510
509 Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 MICH. L. REV. 459,
494507 (2010).
Congress has preserved the central role of the judiciary in the

contest over what procedures should govern review of national secur-
ity detention. Although the National Defense Authorization Act for
Fiscal Year 2012 contains broad authorization for detention, it does
not alter or address procedural aspects of judicial review, despite calls
to do so.511 Perhaps Congress has reached a stable equilibrium.
Judges approaches to future detentions and detention legislation in
future conflicts will focus on the Suspension Clause question. If Con-
gress centers review in an enhanced version of CSRTs, if POWs receive
military hearings and demand access to habeas, or if Congress creates
a national security court with Article III judges but streamlined proce-
dure, courts will ask whether each is an adequate and effective substi-
tute for habeas, and not simply whether general procedures satisfy
due process. In some cases, the answer might be the same under a
habeas or due process approach, but only if judges retain the power to
adequately review authorization for detentions. Moreover, Boumediene
will continue to impact all of habeas corpus, ranging from judicial
review under immigration statutes to central questions in postconvic-
tion law, including actual-innocence claims.
The connection between habeas corpus and due process has
been long celebrated. Daniel Meador heralded how [f]lexibility to
meet new problems is one of the characteristics of both due process
and habeas corpus, and the value of the habeas corpusdue process
combination as protection against arbitrary imprisonmentcan
hardly be exaggerated.512 Yet the virtues of flexibility include the
vices of malleability. The Suspension Clause jurisprudence forged in
the wake of Hamdi and Boumediene suggests that connecting habeas
corpus and due process requires great care.
The structural role of the Suspension Clause is now firmly estab-
lished. Contrary to expectations, after exerting its influence in the
shadows for so long, the Clause anchors a process animating the oper-
ation of far-flung aspects of habeas corpus, ranging from military de-
tention, to immigration detention, to postconviction review. While
due process and habeas corpus overlap in some of the protections
they provide, a judge asks different questions when examining a due
process claim versus a habeas challenge to custody. A judge examin-
ing a due process claim will focus on the general adequacy of the pro-
cedures employed. A judge examining a habeas challenge will focus
on the legal and factual authorization of an individual detention, and
511 See WITTES ET AL., supra note 324, at 83 (arguing that courts desperately need gui- R
dance but prospects of legislative intervention are . . . exceedingly remote); Kuhn, supra
note 372, at 242 (describing congressional deference to current judicial process); supra R
note 333 and accompanying text. R
512 MEADOR, supra note 4, at 8283. R
in more troubling cases, on the larger Suspension Clause question of

whether federal judges have an adequate and effective ability to ex-
amine that question of authorization. The roles of habeas and due
process are distinct and in important respects they share an inverse
relationshiphabeas corpus can fill the breach when due process is
inadequate. The Suspension Clause ensures that habeas corpus serves
a powerful, independent, and unappreciated role standing alone.

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txt unknown Seq: 1 1-NOV-12 15:10

HABEAS CORPUS AND DUE PROCESS

Roy L. and Rosamund Woodruff Morgan Professor of Law, University of Virginia

48 CORNELL LAW REVIEW [Vol. 98:47

3. The Suspension Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 R

[S]tandards of due process have evolved over the centuries. But

1 Fay v. Noia, 372 U.S. 391, 402 (1963).

2012] HABEAS CORPUS AND DUE PROCESS 49

3 Fay, 372 U.S. at 402.

50 CORNELL LAW REVIEW [Vol. 98:47

Clause and the Due Process Clause remained completely

2012] HABEAS CORPUS AND DUE PROCESS 51

functional relationship in which due process supplied the rights while

52 CORNELL LAW REVIEW [Vol. 98:47

connected the Suspension Clause and the Due Process Clause in a

26 424 U.S. 319 (1976).

2012] HABEAS CORPUS AND DUE PROCESS 53

swering the Suspension Clause question, the ruling created another

54 CORNELL LAW REVIEW [Vol. 98:47

2012] HABEAS CORPUS AND DUE PROCESS 55

of due process, which contains a sprawling modern procedural and

44 See infra Part I.B.

56 CORNELL LAW REVIEW [Vol. 98:47

51 See infra notes 28992 and accompanying text. R

2012] HABEAS CORPUS AND DUE PROCESS 57

habeas, this reading of the Clause provides new constitutional support

58 CORNELL LAW REVIEW [Vol. 98:47

tal but powerful: to allow a judge to review the legality of a prisoners

2012] HABEAS CORPUS AND DUE PROCESS 59

70 8 U.S. (4 Cranch) 75, 9495 (1807).

60 CORNELL LAW REVIEW [Vol. 98:47

judge to review the legality of and authorization for the detention.77

B. Common Law Origins

1. Origins of Habeas Corpus

2012] HABEAS CORPUS AND DUE PROCESS 61

corpus as a writ antecedent to statute, . . . throwing its root deep into

62 CORNELL LAW REVIEW [Vol. 98:47

glish Civil War and Restoration, justices used habeas as a powerful

2012] HABEAS CORPUS AND DUE PROCESS 63

has powerfully shown, by examining Kings Bench records, that con-

2. Origins of Due Process

64 CORNELL LAW REVIEW [Vol. 98:47

brought in Answer by due Process of the Law.110 Later commenta-

3. The Suspension Clause

2012] HABEAS CORPUS AND DUE PROCESS 65

Privilege of the Writ of Habeas Corpus shall not be suspended, unless

116 U.S. CONST. art. I, 9, cl. 2.

66 CORNELL LAW REVIEW [Vol. 98:47

reviewed federal habeas decisions following the Act through 1867,

2012] HABEAS CORPUS AND DUE PROCESS 67

text judges and scholars have debated whether habeas corpus

68 CORNELL LAW REVIEW [Vol. 98:47

to those restrictions, they typically do so because important new evi-

4. The Due Process Clause

136 See infra note 365 and accompanying text. R

2012] HABEAS CORPUS AND DUE PROCESS 69

146 110 U.S. 516, 521 (1884).

70 CORNELL LAW REVIEW [Vol. 98:47

the Court has relied on newly formed consensus.155 In a range of

2012] HABEAS CORPUS AND DUE PROCESS 71

C. A Writ and a Right

72 CORNELL LAW REVIEW [Vol. 98:47

168 28 U.S.C. 2241(c)(1).